Downey v. Rigano

258 A.D. 749, 15 N.Y.S.2d 313, 1939 N.Y. App. Div. LEXIS 6751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1939
• Status: Published

Opinion

In an action brought by the successor of the trustee bank to construe a trust agreement, settle the trustee’s accounts, declare the rights of judgment creditors, etc., the sons of the settlor of the trust allege as a defense that they are the owners of the corpus. An interlocutory 'judgment was rendered in favor of respondents after trial by the court, without a jury, and final judgment was entered thereon. The appeal is from the interlocutory and final judgments herein and from an order denying appellants’ motion for a new trial upon the ground of newly-discovered evidence. Interlocutory and final judgments, in so far as appealed from, reversed on the facts and a new trial granted, costs to abide the event. As there is to be a new trial, all findings of fact and conclusions of law are reversed. In our opinion the judgment is against the weight of the evidence. The trial court placed more reliance on the oral testimony than on the conduct, acts and attitude of the respondents, particularly the failure to disclaim the act of the father in settling the trust for his own benefit, instituting the suit against the trustee on the assignment made by the father and the failure to prosecute that action, and the long quiescent period within which there was no assertion by the sons that they were the owners of the fund. In view of the foregoing determination, the appeal from the order denying appellants’ motion for a new trial is dismissed, without costs. Lazansky, P. J., Carswell and Adel, JJ., concur; Hagarty and Close, JJ., dissent and vote to affirm the judgments and order.