Opinion
March 5, 1958
Appeal from the Chautauqua Supreme Court.
Present — McCurn, P.J., Williams, Bastow, Goldman and Halpern, JJ.
Judgment reversed on the law and facts and matter remitted to Special Term for entry of an interlocutory judgment in accordance with the memorandum, without costs of this appeal to either party. Memorandum: In our opinion Special Term correctly found that plaintiff was entitled to an accounting but erred in directing judgment for monetary relief. There was proof upon the trial that plaintiff delivered certain moneys to the defendant, her mother-in-law. Upon demand there was a failure to return the moneys or account therefor. In such event equity may find an implied trust and decree an accounting ( Fur Wool Trading Co. v. Fox, Inc., 245 N.Y. 215). The judgment appealed from should be reversed upon the law and facts and the action remanded to Special Term for entry of an interlocutory judgment directing defendant to account to plaintiff and for further proceedings in connection with the taking and stating of such account and a determination of the rights of the respective parties. All concur.