Opinion
July 2, 1956
Present — Nolan, P.J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ. [ 207 Misc. 474.] [See post, p. 819.]
Defendant appeals from a judgment directing him to convey to plaintiffs undivided interests in real property in Westchester County, free and clear of a mortgage lien on said property. Plaintiffs cross-appeal from so much of the judgment as directs the conveyance to each plaintiff of a one-fifth interest in the property rather than the one-fourth interest prayed for in the complaint and directs plaintiffs to pay defendant $2,996.11. The trial court found, in substance, that defendant had taken title to the property upon the understanding that he would hold it for the family as a whole; that the family consisted of the parties to the action and their mother; that a constructive trust arose which would be enforced in equity; that defendant's affirmative defenses were not sustained by the proof, and that as a condition of obtaining free and unencumbered interests in the property plaintiffs should pay their share of the balances owing on the mortgages outstanding against the premises as of the date when defendant began to pay the carrying charges. Judgment unanimously affirmed, without costs. The questions presented were primarily factual, and in our opinion the determination of the learned Special Term was supported by the proof. (Cf. Amend v. Hurley, 293 N.Y. 587, 594.)