Borenstein v. Borenstein

Full title: DAVID BORENSTEIN, Respondent, v. JEANETTE BORENSTEIN, Appellant. (Appeal…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 1, 1935

243 App. Div. 790 (N.Y. App. Div. 1935)

Opinion

March, 1935.

Resettled order denying defendant's motion to vacate warrants of attachment theretofore granted affirmed, without costs. No opinion.

Lazansky, P.J., Young, Carswell and Johnston, JJ., concur; Scudder, J., dissents and votes to reverse the order and to grant the motion, with the following memorandum:

The action takes on the character of one in equity, brought by the father of two children against the mother, to establish or enforce a trust for the benefit of the two children. In substance, if not in form, the children are the real plaintiffs. The plaintiff does not allege he was to receive anything, and defendant's alleged breach of contract deprived him of nothing. The warrants of attachment against defendant's property should not be sustained. (Civ. Prac. Act, § 902.)