Opinion
February 17, 1966
Appeal from the Niagara Trial Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously reversed on the law and facts, and a new trial granted, without costs of this appeal to either party. Memorandum: Heretofore we reserved decision upon this appeal and remitted the action to the Referee for the making of appropriate findings of fact and conclusions of law ( 24 A.D.2d 50). While we reviewed the facts in some detail it was emphasized (p. 54) that "this evidence presented questions of credibility which the trier of the facts, and not this court, must resolve." The Referee has submitted an "opinion" but no findings of fact were made. In lieu thereof certain conclusory statements are made from which it appears that the Referee continues to misunderstand the issues presented. Thus, it is concluded that "no fraud or deception was practiced on plaintiff-husband" by the defendant. This has little or no relevancy. Our prior opinion ( 24 A.D.2d 50) pointed out that the issue was whether or not constructive trusts should be impressed on certain realty by reason of defendant's oral promise to reconvey and the existing confidential relation which would be abused if there were repudiation, without redress, of a trust orally declared. The failure of the Referee to comply with the prior order of this court and his apparent failure to understand the issues presented mandate a new trial.