Opinion
June 12, 1967
Judgment of the Supreme Court, Westchester County, entered March 10, 1965, modified, on the law and the facts, by striking out the second and third decretal paragraphs and adding to the first decretal paragraph a provision that the dismissal of the complaint is on the merits. As so modified, judgment affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. The conclusion of the Trial Justice that defendant did not agree to acquire title to the real property which is the subject of this action, in plaintiff's name, or to convey title to the property in fee simple or otherwise to plaintiff is supported by substantial evidence. However, the evidence adduced was not sufficient to sustain the conclusion that the money advanced by plaintiff to defendant was an absolute gift or that plaintiff has no right, title or interest in the property. It was undisputed that plaintiff was to have the right to occupy a portion of the premises, rent free, but the evidence also established that this right was never refused plaintiff and that she had refused to exercise it unless the property should first be conveyed to her by defendant. Whether the promise by defendant to grant plaintiff such right of possession was made independently or in consideration of the advance of money by plaintiff to defendant was not decided, since there appeared to be no dispute that some agreement had been made, which plaintiff had not sought to enforce, and since judgment was not sought with respect to the enforcement of that agreement. Consequently, the judgment should be modified, so that it will not indicate that plaintiff's right to occupy a portion of the property, rent free, has been foreclosed. Beldock, P.J., Rabin, Benjamin, Munder and Nolan, JJ., concur.