Opinion
November 30, 1961
Appeal from the Erie Trial Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Judgment unanimously modified on the law and facts in accordance with memorandum and as so modified affirmed, with costs to respondent. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: We find no proof in this record to establish the first cause of action in the complaint based upon alleged false and fraudulent representations claimed to have been made by the defendant to the decedent. The trial court in the first instance correctly dismissed this cause of action but thereafter reversed this ruling and granted judgment thereon in favor of plaintiff. This was erroneous. There is ample proof, however, to sustain the verdict of the jury and the decision of the trial court as to the second cause of action which seeks to impress a trust on the proceeds of the two bank accounts and the two life insurance policies. The judgment insofar as it implemented these findings and determination should be affirmed.