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Papouchis v. Papouchis

Appellate Division of the Supreme Court of New York, Second Department
May 15, 1967
28 A.D.2d 554 (N.Y. App. Div. 1967)

Opinion

May 15, 1967


Judgment of the Supreme Court, Queens County, dated February 21, 1966, ordering, inter alia, that plaintiff's dower in certain real property be admeasured, reversed, on the law and the facts, and new trial granted with costs to abide the event; findings of fact numbered "Ninth" and "Eleventh" are reversed and new findings are made as indicated herein; and appeal from order of said court dated October 18, 1965, denying defendants' motion for a new trial or, in the alternative, for a partial new trial, dismissed as academic, without costs. In this action to admeasure dower, Special Term granted plaintiff judgment after having found that the real property described in the complaint had been conveyed by George Papouchis, who died on September 9, 1962, to his brother, defendant Peter Papouchis, in November, 1923 in fraud of the dower rights of plaintiff, whom George Papouchis married in January, 1924. The judgment, however, must be reversed because the record does not contain evidence that, at the time of the conveyance, plaintiff and George Papouchis intended to intermarry (cf. Rubin v. Myrub Realty Co., 244 App. Div. 541; Le Strange v. Le Strange, 242 App. Div. 74; Youngs v. Carter, 10 Hun 194; Pomeroy v. Pomeroy, 54 How. Prac. 228; Swaine v. Perine, 5 Johns. Ch. 482). Nor was evidence given by plaintiff showing that she lacked knowledge of the conveyance ( Pomeroy v. Pomeroy, supra, p. 233; Daniher v. Daniher, 201 Ill. 489; 1 Walsh, Commentaries on the Law of Real Property, § 101). Last, plaintiff failed to establish that $10 was the sole consideration given for the deed. The testimony of defendant Peter Papouchis, relied upon by the learned Special Term Justice to support his finding that $10 was the maximum consideration given by this defendant for the conveyance, merely related to the sum given by him at the time of the delivery of the deed to him, or at least it reasonably may be so read. Thus construed, it does not preclude the use of an antecedent debt or other value as consideration. Plaintiff's complaint alleged a claim for admeasurement of dower on the ground that the November, 1923 deed was in fact executed in September, 1924, after her marriage to George Papouchis. The learned Special Term Justice, however, decided the action upon the theory that the real property at bar had been conveyed to defendant Peter Papouchis prior to the marriage and in fraud of plaintiff's dower rights, a theory concerning which the parties had not offered proof. In our opinion, the interests of justice require a new trial. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.


Summaries of

Papouchis v. Papouchis

Appellate Division of the Supreme Court of New York, Second Department
May 15, 1967
28 A.D.2d 554 (N.Y. App. Div. 1967)
Case details for

Papouchis v. Papouchis

Case Details

Full title:OLGA G. PAPOUCHIS, Respondent, v. PETER N. PAPOUCHIS et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 15, 1967

Citations

28 A.D.2d 554 (N.Y. App. Div. 1967)