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DOROTHY STEVENSON v. JOHN J. STEVENSON (05/26/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 26, 1969

DOROTHY STEVENSON, APPELLANT,
v.
JOHN J. STEVENSON, AS EXECUTOR OF MARY F. MCDERMOTT, DECEASED, RESPONDENT, ET AL., DEFENDANT

In an action to adjudge a deed to be in fact a mortgage and for related relief, plaintiff appeals from a judgment of the Supreme Court, Nassau County, dated May 23, 1968, which dismissed the complaint after a non-jury trial.

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

Judgment affirmed, with costs. In our opinion, plaintiff failed to establish her cause of action by "clear and conclusive evidence" (Ensign v. Ensign, 120 N. Y. 655, 656). Moreover, she was guilty of laches in not challenging the validity of the document in question until 1967. The deed was executed in 1953 and plaintiff did not institute the instant action until some two years after the death of the grantee, respondent's testatrix, in 1965. Under these circumstances it was prejudicial to make the executor of her estate defend this action.

Disposition

 Judgment affirmed, with costs.

19690526

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