Feuer v. Paget

Full title: CHARLES FEUER et al., Appellants, v. HARRY PAGET, Respondent

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

Date published: Jul 2, 1973

42 A.D.2d 699 (N.Y. App. Div. 1973)

Opinion

July 2, 1973

In an action to recover damages, predicated upon a complaint alleging false representations assertedly made by defendant, while acting in a fiduciary capacity, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated December 22, 1972, which granted defendant's motion to dismiss the complaint, on a defense founded upon documentary evidence (CPLR 3211, subd. [a], par. 1), and from a judgment of the same court, dated January 11, 1973, entered upon such order. Order and judgment affirmed, with $20 costs and disbursements. No opinion.

Munder, Acting P.J., Latham, Shapiro and Christ, JJ., concur; Benjamin, J., dissents and votes to reverse and to deny the motion to dismiss the complaint, with the following memorandum:

In my opinion, a constructive trust exists by reason of the relationship of the parties, raising the issue of fraud on defendant's failure to disclose the consideration received by him ( Meinhard v. Salmon, 249 N.Y. 458).