Opinion
December 29, 1970
Appeal from a judgment of the Supreme Court, Fulton County, entered August 26, 1969, upon a decision of the court at Trial Term without a jury. The trial court found a constructive trust and directed appellant to execute a deed conveying to respondent and himself, as tenants by the entirety, real property which had been conveyed to appellant by his parents. The record establishes that appellant and respondent were married in 1945; that they began construction of a house in 1946 on land owned by the appellant's father and mother, with lumber given to him by his father; that respondent bought some of the materials and worked on the construction of the house which was completed after a period of about two years; and that title to the property was taken in appellant's name alone in October of 1949. Respondent testified that while they were building the house appellant promised her that her name would be put on the deed. In the years 1960 and 1963 major repairs were made to the house, respondent purchasing several of the items of improvement. She further testified that she "always had the idea" that her name was on the deed. In 1963 appellant told her that it was not. She actually discovered that the deed was in appellant's name alone in late December of 1966, or early 1967, when her attorney examined the records of the County Clerk. Appellant contends that there is no evidence to support respondent's claim that she is entitled to a constructive trust, and further that the action is barred by the Statute of Limitations. There is no finding by the trial court of actual fraud on appellant's part, nor is there any evidence to warrant such a finding. An action based on constructive fraud falls within CPLR 213 (subd. 1). It must be commenced within 6 years (10 years under former Civ. Prac. Act, § 53, which was applicable here) of the commission of the acts on which the claim is predicated, and not from the time when the facts constituting the fraud were discovered. ( Scheuer v. Scheuer, 308 N.Y. 447, 450; 509 Sixth Ave. Corp. v. New York City Tr. Auth., 15 N.Y.2d 48, 52; Martin v. Martin, 29 A.D.2d 864, 865.) Respondent's cause of action accrued on October 7, 1949, the date when appellant took title in his name alone. Any constructive fraud on appellant's part took place on or prior to that date. The defense of the statute, however, was not pleaded in the answer. It was raised on motion by appellant to amend his answer after respondent had put in all her proof. While the court reserved and never actually passed on the motion, it is deemed to have been denied. (Cf. Brenan v. Moore-McCormack Lines, 3 A.D.2d 1006.) Permission to amend is within the discretion of the Trial Judge and may properly be denied where the facts constituting the defense are known when the answer is interposed. ( Brown v. Brown, 93 N.Y.S.2d 63, mod. on other grounds 275 App. Div. 1068, affd. 302 N.Y. 556.) In the instant case the time commenced to run when appellant received the deed. Consequently, he was well aware of this circumstance prior to serving his answer and the court correctly denied the motion at that stage of the trial. Where a confidential relationship exists between two parties and there is a breach of an oral contract by one, the court may impose a constructive trust to prevent unjust enrichment. ( Colwell v. Zolkosky, 29 A.D.2d 720; Rickerman v. Rickerman, 34 A.D.2d 1069.) On the present record the court could find that such a relationship existed, and that there was an oral agreement by appellant to put the property in both names. ( Muller v. Sobol, 277 App. Div. 884.) We find no merit in the other issue raised by the defendant. Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.