Opinion
February 18, 1938.
Present — Lazansky, P.J., Hagarty, Carswell, Davis and Close, JJ.
Action in equity to compel the executor of the decedent, Kirby, to satisfy and discharge a mortgage on plaintiff's property pursuant to an instrument made by the deceased on April 29, 1933. The defendant asserted in his answer that the instrument was unsupported by any consideration and was unenforcible, and sought its cancellation. Judgment for the defendant canceling the instrument unanimously affirmed, with costs. There was no proof of fraud or undue influence but there was adequate proof that the instrument relied on by plaintiff was without consideration; that is, the affirmative evidence overcame the presumption of consideration arising from the recital of alleged consideration in the instrument. There being no consideration, the instrument was unenforcible. ( Dougherty v. Salt, 227 N.Y. 200, 202.) There was no claim of gift. The claim, based on gift cases, that declarations of the decedent after the making of the instrument were inadmissible if inconsistent with the fact of gift, and that such testimony was erroneously received, may not be sustained, for the reason that substantially the same testimony was elsewhere adduced to establish admissions of the plaintiff that she had no right to retain the instrument in question and claimed no rights thereunder. The error, therefore, if any, was not prejudicial.