We dissent and vote to reverse the judgment and grant a new trial on the causes of action pleaded in the complaint.
With respect to the cause of action to void a deed of record, it was plaintiff’s testimony that he executed and acknowledged a deed to the defendant dated September 4, 1974. The deed was not delivered to defendant at that time, but was placed in an envelope on which the following words were written: "Under no circumstances are the contents of this envelope to come into possession of my Daughter, Dolores, under any circumstances, until my death, S. J. R, Nov. 18/ 74”. The envelope was placed in a locked "strongbox”. According to plaintiff, the defendant opened the locked box, withdrew the deed and recorded it on July 12, 1976.
Defendant claimed that the deed was handed to her after it was acknowledged.
With respect to the conversion of the two Totten trust accounts (i.e., actually a savings account passbook and a savings certificate), which concededly were created from plaintiff’s funds after the sale of his home in Brooklyn, plaintiff alleged, inter alia, that the money was placed in defendant’s name in trust for himself and that it was the intention of the parties that the funds were to become the sole property of the defendant when he died. Plaintiff further alleged (1) that he kept the bankbook and, in July of 1976, the defendant improperly took it and withdrew the money and (2) that defendant improperly had his name deleted from the savings certificate. Each account contained a power of attorney in favor of plaintiff, and he argues that this fact, coupled with testimony that the bank accounts were never voluntarily given to the defendant donee, negates any presumption of delivery which is an essential element in proving a gift.
Defendant argues that plaintiff set up the two accounts in her name in trust for him so that if anything happened to her *583it would not be taxed to her estate, but that she had total control and dominion over them.
In accepting defendant’s version of the transactions and holding that valid gifts had been made to her of the realty and the funds described in the three causes of action, the trial court necessarily rejected plaintiffs testimony and in its decision, the trial court specifically stated that plaintiff was worthy of "little credibility”. However, it further appears from the decision of the trial court that the latter was suspicious of plaintiff merely because he was a lawyer and was strongly influenced by its assumption that plaintiffs preparation of the unrecorded deed and the setting up of the bank accounts, manifested an intent by him to fraudulently evade the tax statutes and that he was guilty of "unclean hands”. (The trial court did not address itself .to the significance, if any, of the power of attorney in favor of plaintiff on both bank accounts.)
Although a trial court, in weighing the credibility of a witness, may give weight to a conviction of a crime or any immoral or criminal act of his life which may affect his character and show him to be unworthy of belief (CPLR 4513; Shepard v Parker, 36 NY 517, 518), this record is totally devoid of any evidence of fraudulent intent on the part of plaintiff to avoid the payment of taxes. Indeed, plaintiffs conduct was readily explainable as simply the normal desire of an elderly man to hold onto his property as long as possible and in no event did it rise to a level which could serve as the basis for impeaching his credibility.
Nor was the doctrine of unclean hands properly invoked. Apart from the fact that this equitable defense was not pleaded by the defendant, it was totally inappropriate under the facts at bar. In National Distillers & Chem. Corp. v Seyopp Corp. (17 NY2d 12, 15-16), the Court of Appeals stated: "In the first place it is never used unless the plaintiff is guilty of immoral, unconscionable conduct and even then only 'when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct’ ”.
In light of this definition, it can hardly be argued that plaintiff was, as noted by the trial court, guilty of unclean hands and if allowed to prevail, would "profit by unethical conduct.” Indeed, the record indicates that it was defendant who profited from plaintiffs largesse from 1960 to 1974, since during that period, the latter paid for several substantial *584improvements, including a driveway and swimming pool, and made all payments on the mortgage until it was paid off, as well as taxes.
Accordingly, the judgment entered in favor of defendant should be reversed and a new trial granted.
Lazer, Gulotta and Shapiro, JJ., concur in Per Curiam opinion; Suozzi, J. P., and Cohalan, J., dissent and vote to reverse the judgment and grant a new trial, with an opinion.
Judgment of the Supreme Court, Suffolk County, entered March 1, 1978, affirmed, without costs or disbursements.