Opinion
November 20, 1961
In an action by a former husband against a former wife to impress a constructive trust upon her one-half interest in certain real property, in which the wife asserted a counterclaim for partition, the defendant wife appeals from a judgment of the Supreme Court, Kings County, rendered February 24, 1961 upon the decision of a Special Referee after a nonjury trial before him (by consent of the parties), which: (a) dismissed her counterclaim; (b) declared the existence of the trust; and (c) directed her to reconvey her interest in the property to plaintiff upon his payment of $1,200 to her. Judgment reversed on the law and the facts and a new trial ordered, with costs to abide the event. In our opinion, plaintiff failed to establish: (a) the existence of a confidential relation between the parties when the alleged oral agreement was made; (b) the making of the alleged agreement; and (c) unjust enrichment of defendant at plaintiff's expense. Hence, on the basis of such proof, the court could not impress a constructive trust upon the subject premises. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.