Garton v. Garton

Appellate Division of the Supreme Court of New York

Garton v. Garton

275 A.D.2d 711

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

DecidedMarch 7, 1949

StatusPublished

This text of 275 A.D.2d 711 (Garton v. Garton) 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

Garton v. Garton, 275 A.D.2d 711 (N.Y. Ct. App. 1949).

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Opinion

[712]*712Findings of fact numbered 50 and 51 and conclusions of law numbered 3 and 4 are reversed and new findings and conclusions will be made, such findings and conclusions to be submitted on five days’ notice. Plaintiff’s complaint was predicated upon the theory that he was entitled to a one-half interest in the property in question and on the trial he did not establish a right to any greater relief. It was, therefore, error to direct defendant to convey the property to plaintiff alone. That relief was not authorized by the evidence nor under the allegations of the complaint, and defendant was not apprised of the fact that any such claim would be made. (Cf. Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Graham v. Read, 57 N. Y. 681; Gettins v. Boyle, 184 App. Div. 499, mod. on reargument, 186 App. Div. 966.) Present — Holán, P. J., Carswell, Sneed, Wenzel and Mae-Crate, J J.

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[712]*712Findings of fact numbered 50 and 51 and conclusions of law numbered 3 and 4 are reversed and new findings and conclusions will be made, such findings and conclusions to be submitted on five days’ notice. Plaintiff’s complaint was predicated upon the theory that he was entitled to a one-half interest in the property in question and on the trial he did not establish a right to any greater relief. It was, therefore, error to direct defendant to convey the property to plaintiff alone. That relief was not authorized by the evidence nor under the allegations of the complaint, and defendant was not apprised of the fact that any such claim would be made. (Cf. Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Graham v. Read, 57 N. Y. 681; Gettins v. Boyle, 184 App. Div. 499, mod. on reargument, 186 App. Div. 966.) Present — Holán, P. J., Carswell, Sneed, Wenzel and Mae-Crate, J J.

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275 A.D.2d 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garton-v-garton-nyappdiv-1949.

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