Burnside v. Burnside

253 A.D. 814, 1 N.Y.S.2d 1019, 1938 N.Y. App. Div. LEXIS 8743

Opinion

Plaintiff husband seeks to establish a trust in each of two parcels of real property, title to which is in the name of the defendant wife, now an incompetent. The incompetent, by her committee, counterclaimed for moneys and property received by plaintiff prior to the appointment of the committee. Order confirming report of official referee and judgment dismissing the complaint and awarding judgment in favor of defendants on the counterclaim reversed on the law and the facts, motion to confirm the report denied, and a new trial granted, with costs to appellant to abide the event. In our opinion the judgment is against the weight of the evidence. Hagarty, Johnston, Adel and Taylor, JJ., concur; Carswell, J., dissents and votes to affirm.