Opinion
October 15, 1963
Decree unanimously reversed, on the law and the facts and in the exercise of discretion, and a new trial is granted, with costs to abide the event. The evidence received is ambiguous as to the true nature of the transactions between plaintiff and decedent. Plaintiff attempted to present the transaction as a simple loan, whereas the evidence indicates a more complex noncash arrangement, in which the alleged corporate debts owed plaintiff and the alleged debt owed by decedent to one of the corporations were converted into an alleged debt from decedent to plaintiff. In view of the cautious offering of proof, it is not clear that the documented transactions represented genuine ones, or that plaintiff parted with value. Under the circumstances plaintiff has not established his claim against decedent's estate by the required preponderance of evidence (see Matter of Sherman, 227 N.Y. 350, 353). However, a new trial is appropriate under these circumstances since plaintiff may be able to establish his claim if afforded another opportunity, and if a complete disclosure of the facts is forthcoming.
Concur — Botein, P.J., Breitel, McNally, Stevens and Steuer, JJ.