Markis v. Tuschkan

This is an appeal from a judgment which determines that plaintiff as administratrix recover from defendant $1,171.99, with interest, and that such amount, together with costs, be a lien upon certain real property which, if the judgment is not paid within thirty days, is to be sold at public auction, and plaintiff is to recover the deficiency, if any, from the defendant. The trial court has found that plaintiff’s intestate (her husband) paid $1,400 to defendant to be used by him as a part of the purchase price of the premises. That the deed was to be taken in the name of the defendant, but that he was to hold an undivided one-half of the premises in trust for the benefit *799of plaintiff’s intestate who was to pay one-half of the expenses of holding the premises, and that any profit from the sale was to be shared equally. Defendant admitted receiving the $1,400 and that at one time plaintiff’s intestate had an interest in the premises, but asserted that the amount had been repaid, and that thereafter defendant was the sole equitable as well as legal owner. The court found that a trust orally declared existed and required defendant, as a faithless trustee, to return the subject-matter of the trust. (Foreman v. Foreman, 251 N. Y. 237.) Judgment unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, MeNamee, Crapser and Heffernan, JJ.