In re the Final Accounting of Topkis

Appellate Division of the Supreme Court of New York

In re the Final Accounting of Topkis

23 A.D.2d 751, 1965 N.Y. App. Div. LEXIS 4353

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

DecidedApril 29, 1965

StatusPublished

This text of 23 A.D.2d 751 (In re the Final Accounting of Topkis) 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

In re the Final Accounting of Topkis, 23 A.D.2d 751, 1965 N.Y. App. Div. LEXIS 4353 (N.Y. Ct. App. 1965).

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Opinion

Order, entered on December 3, 1964, granting respondent’s motion to dismiss the first and second affirmative defenses contained in petitioner’s reply to the amended objections, unanimously affirmed, without costs and without disbursements. The Statute of Frauds could properly be asserted as a defense if the cause of action lay in contract and if the relief sought were to enforce “ a contract to bequeath property or make a testamentary provision.” (General Obligations Law, § 5-701, subd. 7; formerly Personal Property Law, § 31, subd. 7.) However, we view the proceeding as one not to enforce a contract but rather as one to impress a trust upon the moneys received by the testator from her deceased husband’s estate. If the objeetants prove sufficient to move the court to establish a constructive trust, then the Statute of Frauds would not be a defense (Oursler v. Armstrong, 10 N Y 2d 385). If, however, they fail to establish the propriety of declaring a constructive trust, then they will have failed completely to have sustained their objections. They may not, in the circumstances, sustain their objections by proving a breach of contract. Concur — Botein, P. J., Rabin, McNally and Stevens, JJ.

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Order, entered on December 3, 1964, granting respondent’s motion to dismiss the first and second affirmative defenses contained in petitioner’s reply to the amended objections, unanimously affirmed, without costs and without disbursements. The Statute of Frauds could properly be asserted as a defense if the cause of action lay in contract and if the relief sought were to enforce “ a contract to bequeath property or make a testamentary provision.” (General Obligations Law, § 5-701, subd. 7; formerly Personal Property Law, § 31, subd. 7.) However, we view the proceeding as one not to enforce a contract but rather as one to impress a trust upon the moneys received by the testator from her deceased husband’s estate. If the objeetants prove sufficient to move the court to establish a constructive trust, then the Statute of Frauds would not be a defense (Oursler v. Armstrong, 10 N Y 2d 385). If, however, they fail to establish the propriety of declaring a constructive trust, then they will have failed completely to have sustained their objections. They may not, in the circumstances, sustain their objections by proving a breach of contract. Concur — Botein, P. J., Rabin, McNally and Stevens, JJ.

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23 A.D.2d 751, 1965 N.Y. App. Div. LEXIS 4353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-final-accounting-of-topkis-nyappdiv-1965.