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(116 App. Diy. 787)

DOLAN et al. v. CUMMINGS. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. DEEDS-VALIDITY_FRAUD-CONFIDENTIAL RELATIONS.

Plaintiffs and defendant, who were brothers and sister, were 'tenants in common of certain land. Plaintiffs were ignorant of the market value of the land, which was well known to defendant, who, without disclosing that he had received an offer therefor, or its amount, purchased their interests for a sum much less than had been offered him. Held that defendant was guilty of fraud, warranting cancellation of deed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, $8165

174; vol. 45, Tenancy in Common, $ 22.] 2. SAME-MISREPRESENTATIONS_VALUE OF PROPERTY.

Plaintiffs and defendant, who were brothers and sister, were tenants in common of certain land. Plaintiffs were ignorant of the market value of the land, which was well known to defendant. To induce plaintiffs to sell to him, defendant falsely represented that there were assessments to : be made on the land for improvements; that he was running a great chance of ever getting his money out of it, and took it only as a favor ; and that he was paying all the land was worth, upon which representations plaintiffs relied. Held, that defendant was guilty of fraud, warranting cancellation of deed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 16, Deeds, SS 165

174; vol. 45, Tenancy in Common, $ 22.] 3. FRAUD-FRAUDULENT REPRESENTATIONS-OPINION.

Representations that there were to be assessments and sewers in streets adjoining land; that the purchaser was running a great chance of ever getting his money out of it, and took it only as a favor; and that he was paying all that the land was worth—are affirmations of fact, and not expressions of opinion.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 23, Fraud, 88 12, 13.] Appeal from Special Term, Kings County.

Action by Sarah Dolan and others against Michael Cummings. From a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ.

Martin P. Lynch, for appellant.
George C. Case, for respondents.

RICH, J. Defendant appeals from a judgment, after trial by the court without a jury, adjudging that sales of real property by the plaintiffs to him be rescinded and that he reconvey the property. Prior to February, 1904, the parties, who are brothers and sister, each owned in fee simple, as tenants in common, the equal undivided one-fifth part of 8.25 acres of land in the county of Kings, devised to them by their father. The trial court has found upon sufficient evidence that the market value of the land in February, 1904, was $2,000 per acre, and defendant had been offered this sum for it by a bona fide purchaser on February 16th; that after receiving such offer the defendant went to his sister and brother (the plaintiffs) and purchased from them their respective interests, paying the brother $2,550 and the sister $2,500 therefor; that the conveyance of the plaintiff Cummings was made on February 19th, and that of Sarah Dolan on February 27th; that the defendant fraudulently concealed from his brother and sister the fact that he

and 136 New York State Reporter had an offer of $2,000 per acre for the property, and at the time of the transfer the plaintiffs knew nothing of such offer, and unknowingly sold their interests in the property to the defendant at much less than its market value; that plaintifis, upon discovering the fact that de Pendant had received such offer prior to their conveyance

him. offered to return to the defendant the consideration paid by him, with interest from the time of its payment, with the expenses incurred in preparing and recording their deeds, and offered to pay the expenses of a reconveyance, which offer was refused. As conclusions of law the learned trial court found that the defendant was guilty of fraud in concealing from the plaintiffs the fact that he had received an offer of $2,000 per acre at the time he purchased the property from them for much less, for which fraud the sales should be rescinded and the interests of the plaintiffs in said property reconveyed to them, and judgment was entered accordingly.

We think the findings of fact are supported by the evidence and the exceptions taken thereto are without merit. The only remaining question for our consideration is whether the learned trial court erred in finding, as matter of law, that the defendant was guilty of fraud in concealing from the plaintiffs the fact that he had received a bona fide offer of $2,000 per acre for the land prior to the time he purchased their interests for $1,550 less than the offer he had received and for which he could have sold the premises. The facts bring the case clearly within the rule, declared by the Court of Appeals to be well settled, that whenever the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matters derived from a fiduciary relation, or on the other from dependence or trust justifiably reposed, unfair advantage is rendered probable, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced and that all was open, fair, and understood. Cowee v. Cornell, 75 N. Y. 91-101, 31 Am. Rep. 428. This burden the defendant did not sustain. Not only was no affirmative evidence of this character given by him, but he did not deny that he told Kohart, the broker representing the person desiring to purchase, and who made the offer of $2,000 per acre, that he had better not see or go near the plaintiffs, because he could handle them better than the witness could; the testimony of his sister that he told her on February 18th that he had purchased his brother Nicholas' interest for $2,500 (which was untrue); that there were to be assessments and sewers in the streets, and it would be better for her to take $2,500 clear, and that he did not inform her of the offer made him for the land; or the testimony of his brother that he told him that in purchasing his interest in the property for $2.550 he was taking a great risk, running a great chance, that he didn't know as he would ever get his money out of it, but would do him (Nicholas) a favor and would take it, and that he did not inform him of the offer received.

A relation of confidence and trust existed between the parties. They were brothers and sister. The defendant had superior actual knowledge of the greater value of the land and of his ability to sell it for $1,550 more than he was buying it for. He knew that the plaintiffs placed confidence in him and relied upon his statements to them, and under such circumstances the defendant was under a legal as well as moral obligation to disclose to them the fact that he had received a bona fide offer of $2,000 per acre for the premises he was purchasing of them. The withholding and purposely concealing such information was a fraud entitling the plaintiffs to the relief sought. Dambmann v. Schulting, 75 N. Y. 55-62. Besides this, the record discloses evidence of false representations by defendant affecting the value of the land, which were relied upon by plaintiffs to such an extent that no investigation was made by them to ascertain the actual value of the land. They were not opinions, but were affirmations of fact, and known by defendant to be false, and made with the intent and for the purpose of inducing his sister and brother to sell their interests in the land to him for much less than its actual value.

For these reasons, the judgment must be affirmed, with costs.

HIRSCHBERG, P. J., and WOODWARD and MILLER, JJ., concur.

GAYNOR, J. (concurring). The question whether the mere relation of tenancy in common creates a fiduciary relation among the tenants in respect of the common property seems to be unsettled. In the cases of Van Horne v. Fonda, 5 Johns. Ch. 388, Dickinson v. Codwise, 1 Sandf. Ch. 214, and Wells v. Chapman, 4 Sandf. Ch. 333, there were other elements besides the mere relation. The opinion of the lower court in the case of Graham v. Luddington, 19 Hun, 251, note, was in the affirmative, while the opinion of the three judges on appeal in the case of Streeter v. Shultz, 45 Hun, 406, was in the negative. In the case of Peck v. Peck, 110 N. Y. 64, 17 N. E. 383, there were also other elements. In the case of Abbey v. Wheeler, 85 Hun, 226, 32 N. Y. Supp. 1069, it was held that a suit for an accounting would not lie by a tenant in common against his co-tenant, on the ground that there was no fiduciary relation between tenants in common, and therefore nothing to give equity jurisdiction of such a suit. And so our cases in this state run. There is a diversity of opinion elsewhere. Mr. Bispham, however, in his scientific and altogether able treatise on the principles of equity enumerates the relation of tenants in common among those out of which arises ipso facto a fiduciary relation (section 93); and the case of Duff v. Wilson, 72 Pa. 442, warrants his text.

The present case not only brings the question up squarely, but shows that it ought to be decided in the affirmative.

(117 App. Div. 40)

PEOPLE V. KOERNER. (Supreme Court, Appellate Division, First Department. January 11, 1907.) 1. CRIMINAL LAW-TRIAL JURY-REQUESTED CHARGES.

The jury in a homicide case returned to court and requested the court to inform them whether one juror could legally, if he believed in one degree, for the purpose of agreeing with the other jurors, change his vote from a greater to a less degree. The court responded that the verdict of the jury should express the true belief of each juror. Held, that the and 136 New York State Reporter court properly refused defendant's request to inquire whether the jury could possibly agree on a verdict.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, $$

2065-2067.) 2. SAME.

The court, after refusing to inquire whether the jury could agree, properly refused to hear defendant's counsel state the grounds of his motion

to thereon discharge the jury. 3. SAME.

The court, on the jury returning a verdict in a homicide case, properly refused to hear the counsel for accused before the verdict had been received ; for, if counsel had any complaint that the verdict, when rendered, was improper, he had, under the provisions of Code Cr. Proc. $8462446€,

relating to new trials, ample remedy to protect the rights of accused. 4. SAME-COERCING AGREEMENT.

The jury, in a homicide case, returned a verdict after having deliberated 57 hours. A few hours before, the jury intimated that they were unable to agree. The court requested them to make further endeavor to reconcile their differences. Held, that the jury was not coerced into bringing in a verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $

2069.] 5. SAME-DISCRETION OF Court.

The length of time the jury in a criminal case shall be kept together deliberating on their verdict rests in the sound discretion of the trial court. 10. SAME-OPINION EVIDENCE-MENTAL INCAPACITY-WITNESSES-COMPETENCY.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, s

2072.) 6. SAME.

Where the trial judge in a criminal case believes that some one in the courtroom is indicating to a witness the manner in which he shall answer the questions put to him, the proper practice requires the court to direct the jury to retire while investigating the matter by asking the witness questions relating thereto, and thereby prevent the jury from being unduly influenced by the court's action on coming to consider the testiniony

of the witness. 7. SAME-APPEAL-HARMLESS ERROR.

The trial judge in a criminal case thought some one in the courtroom was indicating to a witness the manner in which he should answer the questions put to him, and he thereupon directed the district attorney to make an investigation of the matter by asking the witness certain questions, without directing the jury to retire. On the following day the court expressly charged the jury to disregard what had happened the day preceding so far as the incident in question was concerned. Ileld, that the

action of the trial court did not constitute reversible error. 8. SAME-MENTAL INCAPACITY-EVIDENCE-ADMISSIBILITY.

Where, on a trial for homicide, the evidence showed that immediately after the killing accused collapsed, and remained unconscious until restored to consciousness by physicians; but the prosecution claimed that accused was shamming, it was error to permit a witness to state the symptoms manifested by one who is shamming unconsciousness.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $

1071.] 9. SAME-APPEAL-ERRONEOUS ADMISSION OF EVIDENCE-HARMLESS ERROR.

Where, on a trial for homicide, two physicians, who had examined accused immediately after the homicide, testified that accused in their opinion was shamming unconsciousness, the error in permitting another physi. cian to state the symptoms manifested by one shamming unconsciousness was not reversible.

| Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, 8

On a trial for homicide, accused alleged that at the time of the killing he was laboring under such a defect of reason as not to know the nature of his act. A witness connected with a newspaper testified that accused had a short time prior to the homicide submitted a poem for publication. The witness had frequently seen accused. Held, that it was competent for the witness to state whether the acts and conversations of accused impressed him as being rational or irrational.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, s

1045.] 11. SAME.

Some time prior to the homicide accused had been instrumental in instituting proceedings for violations of the excise law, and during the course of the trial for such violations his testimony was taken down by the official stenographer of the court. The official stenographer testified that he had no personal acquaintance with accused, and had no recoilection independent of his minutes of the manner in which accused gave his testimony. Held, that it was proper for the official stenographer to state whether or not the answers of accused to the questions propounded impressed him as rational or irrational.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, 8

1045.] 12. SAME-EXPERT WITNESSES-HYPOTHETICAL QUESTIONS.

A question asked a physician for his opinion as to the responsibility of one on trial for crime, which requested him to give an opinion based on the testimony as stated in the question, as well as his own examination of accused, was proper.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, 88

1075, 1073, 1072.] 13. SAME.

Where, on a trial for homicide, accused did not deny the crime, but claimed that it was accidental, or that he was laboring under such a defect of reason as not to know the quality of his act, evidence of his mental condition prior and subsequent to the homicide and at the time of the trial was admissible.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, $

760.] 14. SAME-APPEAL-ERRONEOUS ADMISSION OF EVIDENCE-PREJUDICIAL ERROR.

Where, on a trial for homicide, the fact that accused had been engaged to marry decedent and that the engagement had been broken was admitted by accused, the admission of a letter written by decedent to a third person, stating that her engagement to accused was broken, was not reversible error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, $

3138.] 15. SAME-DRUNKENNESS-DEFENSE.

Where a person, after previously determining to commit a homicide, voluntarily drinks intoxicating liquors until intoxicated, drunkenness is, under the express provisions of Pen. Code, $ 22, no defense, though his condition may be considered in determining the intent with which he committed the crime.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 67.]

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Appeal from Court of General Sessions, New York County.

William J. Koerner was convicted of murder in the second degree, and he appeals. Affirmed.

Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, MCLAUGHLIN, and SCOTT, JJ.

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