Taylor v. Bowne

— In an action inter alia to impress a constructive trust upon certain real property, defendant appeals from an order of the Supreme Court, Westchester County, dated April 17, 1973, which denied her motion for summary judgment and dismissal of the complaint. Order affirmed, without costs. The papers submitted on the motion present a question of fact as to whether defendant and plaintiff’s testatrix intended to enter into a novation, substituting the obligation to pay under a mortgage for the obligation to reconvey the real property in question upon request of plaintiff’s testatrix. Hopkins, Acting P. J., Cohalan, Christ and Brennan, JJ., concur; Shapiro, J., dissents -and votes to reverse the order and grant the motion, with the following memorandum: In my opinion, there was a novation in this case.