Opinion
285 A.D. 1081 139 N.Y.S.2d 734 CHARLES V. WILLIAMS, Appellant, v. EDWARD C. WILLIAMS, Defendant, and CHARLES A. WILLIAMS et al., Respondents. Supreme Court of New York, Second Department. April 16, 1955.
In an action to impress a trust on real property, judgment dismissing the complaint reversed, on the law and the facts, and a new trial granted, with costs to appellant to abide the event. At the close of appellant's case, respondents moved for a dismissal of the complaint and for judgment. In a colloquy that followed, the court, after indicating that appellant had not made out a case, said 'Both sides move for judgment. Judgment for the defendants.' The judgment in favor of respondents was, in effect, a holding that appellant had failed to make out a prima facie case. In our opinion, this was error. The evidence adduced, which the court stated it deemed 'reliable', was sufficient to establish a prima facie case. We deem the findings of fact numbered 9, 10 and 11 to be contrary to the weight of the credible evidence. We direct a new trial so that respondents may have the opportunity to adduce such testimony as may be available to them.
Nolan, P. J., Wenzel, Schmidt, Beldock and Ughetta, JJ., concur.