Crosby v. Gordon

Judgment and order reversed upon the law and the facts and new trial granted, costs to abide the event. We are of the opinion that a new trial should be had in this case in the interests of justice. The evidence is sufficient to raise an issue as to the existence of a fiduciary relation between the defendant and the plaintiff at the time of the transaction involved, and the jury should be instructed that, if they find such relation to exist, in such case the burden rests upon the defendant to establish that the money received by the defendant from the plaintiff was a gift. If the facts show that the action is for money had and received, the wrong being waived, an amendment of the -complaint will be necessary. Lazansky, P. J., Rich, Young, Hagarty and Carswell, JJ., concur.