Crosby v. Gordon

Appellate Division of the Supreme Court of New York

Crosby v. Gordon

230 A.D. 707

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 15, 1930

StatusPublished

This text of 230 A.D. 707 (Crosby v. Gordon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crosby v. Gordon, 230 A.D. 707 (N.Y. Ct. App. 1930).

Pincite

Opinion

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.

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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.

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Bluebook (online)

230 A.D. 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crosby-v-gordon-nyappdiv-1930.