I disagree — and I would affirm " the conclusion of the Trial Justice that the properties be returned to the plaintiff and that there be an accounting, the defendants receiving full credit and compensation, for their expenditures and efforts.
In dismissing the complaint, after overthrowing a determination in favor of an aged mother against her son-attorney-confidante, the majority are now at odds with two of the most rudimentary principles known to the law:
First, in a contest between the weak and the strong, not on terms of equality, the aged and the young, the former not represented by an attorney, the latter, in this ease, not only an attorney himself but in a position of confidence—the burden is on the latter to demonstrate the bona fides of his conduct. (Meinhard v. Salmon, 249 N. Y. 458, 464; Cowee v. Cornell, 75 N. Y. 91; Green v. Roworth, 113 N. Y. 462; Barnard v. Gantz, 140 N. Y. 249; Matter of Peterson, 257 App. Div. 449; Feiber v. Copeland, 232 App. Div. 504; and Mott v. Mott, 49 N. J. Eq. 192.) The Trial Judge has found the burden was not met, in my view, correctly; and his ultimate determination was fully supported by the record.
Secondly, the determination of a Trial Judge on issues of credibility is rarely disturbed. His “ decision should be given the greatest weight ”. (Amend v. Hurley, 293 N. Y. 587, 594; see, also, Kelly v. Watson Elevator Co., 309 N. Y. 49, 51; Barnet v. Cannizzaro, 3 A D 2d 745.) And the late Mr. Justice Irving L. Levey was not easily fooled, if ever, on real property.
Reverting to my first point, we have here a widow bereft, bowed by the recent death of two brothers, and the near fatal illness of her daughter, who had previously assisted her in the management of her properties. On the other side of the table, we have her son, himself represented by an attorney, Mr. Fish. *139Her son is there in double trust: first as her son, who, against any overreaching, should bar the door, not overreach himself. Then, as an attorney himself, in turn represented by an attorney, he should be more than ordinarily alive to double-dealing and breach of trust. And the last word on this subject was spoken by Mr. Fish. (The same Mr. Fish who the defendants say represented the plaintiff): “ I came into this case through Mr. Hiesiger. He paid me, and, therefore, I represented him ”.
Further, that there was a palpable fear of criminal prosecution harbored by the plaintiff mother, I have little doubt. The Trial Judge found that Asher Hiesiger " kept impressing on her the probable civil and criminal penalties which could be imposed on her and her daughter because of alleged violations ”. I believe both the exhibits and the testimony sustain this conclusion. (See Williston, Contracts, § 1613; Adams v. Irving Nat. Bank, 116 N. Y. 606.) Also, like the Trial Judge, I find no writing relating to the duties allegedly assumed by the defendants, and no writing to protect the mother, vis-a-vis her $1,300 a month (life expectancy: seven years). This $1,300 simply represented the amount she had been previously drawing for her personal expenses from the income derived from her properties. The gist of the deal seems to be that she transferred to the other side 20 buildings, received $50,000, and then handed it back. The other side being her son-attorney, his lawyer, Mr. Keith, her son’s partner, who ended up with half the property, and Mr. Keith’s brother and notary. Her accountant testified he did not know what was going on. I can believe it. Concededly, the properties were not all bad. Properly represented, she may well have rid herself of the troublesome ones. But, quoting Mr. Fish again (who the defendants say represented her): “ I had never visited the properties. I did not know what they looked like ”. And it must be noted that Mr. Fish—whose testimony is now sought to be impeached—was called as a witness on behalf of defendants.
Nor do I think the final signing of some of the documents on board ship, with the gangplank about to go up, a proper setting for a dispassionate decision on vast property holdings, resulting in a divestiture almost as complete as King Lear’s. For be it noted, as a result of the transaction, her two daughters have nothing — and according to the Trial Judge, her mother is now on relief.
Nor do I fault the plaintiff for waiting until August of 1968 to sue. The doctrine of ratification does not apply until knowledge of all the facts sets in. (37 Am. Jur. 2d, Fraud and Deceit, §§ 417, 418.) And her continuing trust in her son-attorney dulls *140the application of the doctrine. (Feiber v. Copeland, 232 App. Div. 504, supra, Cowee v. Cornell, 75 N. Y. 91, supra.) She had no cause for continuing inquiry.
Finally, as to the majority’s conclusion that the court’s decision was “ largely motivated” by “an impression apparently gained during the opening statements of counsel ’ ’. That may very well have been so. I do not view it amiss:
“ the court: Was she represented by counsel?
‘ ‘ mr. rosen : No, she was not.
“ the court: Was the defendant represented by counsel?
“ mr. rosen : The defendant is a lawyer and her son— yes. “ the court: This is a mother-son situation?
‘ ‘ mr. rosen : It is, your Honor. Mr. Asher Hiesiger is the plaintiff’s son ”.
The very scenario called for an immediate application of fundamental principles. And, it might appear, at the opening, Mr. Justice Levey seized the nub of the case. But he was right.
I would affirm.
Markewioh, Nunez and Kupferman, JJ., concur with Macken, J.; McGtvern, J. R, dissents in an opinion.
Order and interlocutory judgment (one paper), Supreme Court, New York County entered on June 29, 1970, reversed, on the law and facts, without costs and without disbursements, plaintiff’s motion denied and the complaint dismissed.