McCarthy v. McCarthy

2 Citing cases

  1. Marum v. Marum

    21 Misc. 2d 474 (N.Y. Sup. Ct. 1959)   Cited 8 times

    "Where a relation of confidence has been abused, and a person has never had title to the property but has expended money in the improvement of the property on the basis of an oral promise to convey, which money does not constitute the entire consideration for the purchase of the interest claimed, that person is entitled, not to a conveyance of the property, but only to an equitable lien thereon for the amount expended." ( Petrukevich v. Maksimovich, 1 A.D.2d 786. ) The Petrukevich case was a mother-in-law-daughter-in-law situation but its principle has been applied between husband and wife in cases involving either a contribution to the purchase price or both a contribution and the making of improvements to the property ( McCarthy v. McCarthy, 284 App. Div. 813 affd. 308 N.Y. 1035; Matter of Weiss, 2 Misc.2d 807) and was recognized (although by reason of the husband's payment of the full purchase price, not applied) in Foreman v. Foreman ( 251 N.Y. 237). While in Muller v. Sobol ( 277 App. Div. 884, motion for leave to appeal denied 301 N.Y. 815) the Second Department recognized a relationship of confidence between paramours and affirmed a judgment impressing a trust under circumstances similar to those of the present case, the later decision of the same court in McCarthy v. McCarthy ( supra) must be considered to limit the Muller decision, for it is inconceivable that a less stringent rule should be applied between paramours than between husband and wife.

  2. Serota v. Serota

    20 Misc. 2d 455 (N.Y. Sup. Ct. 1959)   Cited 1 times

    The fact that there is a confidential relationship of husband and wife does not by itself establish a constructive trust. She has failed to establish a cause of action ( Petrukevich v. Maksimovich, 1 A.D.2d 786 [2d Dept.]; McCarthy v. McCarthy, 284 App. Div. 813 [2d Dept.], affd. 308 N.Y. 1035; Latham v. Father Divine, 299 N.Y. 22, 27; Foreman v. Foreman, 251 N.Y. 237, 242; Sinclair v. Purdy, 235 N.Y. 245, 253; Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386; Leary v. Corvin, 181 N.Y. 222; Wheeler v. Reynolds, 66 N.Y. 227, 235). The complaint is dismissed.