Goldstein v. Brockstein

Appellate Division of the Supreme Court of New York

Goldstein v. Brockstein

281 A.D. 762, 118 N.Y.S.2d 280, 1953 N.Y. App. Div. LEXIS 3210

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

DecidedJanuary 19, 1953

StatusPublished

Cited by2 cases

This text of 281 A.D. 762 (Goldstein v. Brockstein) 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

Goldstein v. Brockstein, 281 A.D. 762, 118 N.Y.S.2d 280, 1953 N.Y. App. Div. LEXIS 3210 (N.Y. Ct. App. 1953).

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Opinion

In an action for judgment directing conveyance of property in accordance with an express parol trust, order dismissing complaint on the ground that it is barred by the Statute of Frauds and because the plaintiffs are not the real parties in interest reversed on the law, with $16 costs and disbursements, and motion denied, with $16 costs. The complaint sufficiently alleges the creation of an express parol trust (Foreman v. Foreman, 251 N. Y. 237; McKenna v. Meehan, 248 N. Y. 266; Wnuk v. Wnuk, 95 N. Y. S. 2d 254, affd. 276 App. Div. 1162) as to which the provision in subdivision 1 of section 31 of the Personal Property Law, as well as section 242 of the Real Property Law, is inapplicable (Blanco v. Velez, 295 N. Y. 224). It is alleged in the complaint that the grandmother of the plaintiffs and mother of the individual defendants, who had received the property, did so pursuant to the agreement. (Cf. Meltzer v. Koenigsberg, 277 App. Div. 1656, affd. 362 N. Y. 523.) Under the allegations of the complaint which are susceptible of the interpretation placed upon them by the bill of particulars, the personal representatives of the estates of the promisor and of the mothers of the plaintiffs are not indispensable parties, and even if they were to be so regarded, the plaintiffs should have been afforded a reasonable time within which to join them. (Civ. Prac. Act, § 193.) Holán, P. J., Carswell, Adel, Wenzel and MaeCrate, JJ., concur.

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In an action for judgment directing conveyance of property in accordance with an express parol trust, order dismissing complaint on the ground that it is barred by the Statute of Frauds and because the plaintiffs are not the real parties in interest reversed on the law, with $16 costs and disbursements, and motion denied, with $16 costs. The complaint sufficiently alleges the creation of an express parol trust (Foreman v. Foreman, 251 N. Y. 237; McKenna v. Meehan, 248 N. Y. 266; Wnuk v. Wnuk, 95 N. Y. S. 2d 254, affd. 276 App. Div. 1162) as to which the provision in subdivision 1 of section 31 of the Personal Property Law, as well as section 242 of the Real Property Law, is inapplicable (Blanco v. Velez, 295 N. Y. 224). It is alleged in the complaint that the grandmother of the plaintiffs and mother of the individual defendants, who had received the property, did so pursuant to the agreement. (Cf. Meltzer v. Koenigsberg, 277 App. Div. 1656, affd. 362 N. Y. 523.) Under the allegations of the complaint which are susceptible of the interpretation placed upon them by the bill of particulars, the personal representatives of the estates of the promisor and of the mothers of the plaintiffs are not indispensable parties, and even if they were to be so regarded, the plaintiffs should have been afforded a reasonable time within which to join them. (Civ. Prac. Act, § 193.) Holán, P. J., Carswell, Adel, Wenzel and MaeCrate, JJ., concur.

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Bluebook (online)

281 A.D. 762, 118 N.Y.S.2d 280, 1953 N.Y. App. Div. LEXIS 3210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-brockstein-nyappdiv-1953.

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