McKenna v. Meehan

New York Supreme Court

McKenna v. Meehan

126 Misc. 42, 212 N.Y.S. 612, 1925 N.Y. Misc. LEXIS 1139

DecidedNovember 11, 1925

StatusPublished

This text of 126 Misc. 42 (McKenna v. Meehan) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKenna v. Meehan, 126 Misc. 42, 212 N.Y.S. 612, 1925 N.Y. Misc. LEXIS 1139 (N.Y. Super. Ct. 1925).

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Opinion

Proskauer, J.

The complaint alleges that the real estate involved was the property of the mother of plaintiff and defendant; that it was transferred by the mother to the defendant upon the defendant’s promise to hold the same for the joint benefit of her brother and herself and that after the death of the mother she would divide the property equally with her brother. The complaint does not pray that this conveyance be set aside. On the contrary, it expressly affirms the conveyance and seeks to enforce the oral trust upon which the plaintiff claims the conveyance was made and accepted. Thus, the plaintiff does not claim to have legal title. By the complaint he concedes that the legal title is in the defendant and asks the enforcement of a trust. This does not constitute an action in partition. There are authorities holding that where it is sought to set aside a conveyance and the result of this would be to leave the legal title in the plaintiff and the defendant and the 0 complaint prays for partition, the action is deemed one in partition. (Weston v. Stoddard, 137 N. Y. 119; McGuire v. McGuire, 201 App. Div. 71; Bryant v. Shaw, 190 id. 578; Curran v. Hosey, 153 id. 557; Leidenthal v. Leidenthal, 121 id. 269; Drake v. Drake, 61 id. 1; Holder v. Holder, 40 id. 255; Wagstaff v. Marcy, 25 Misc. 121; Best v. Zeh, 82 Hun, 232.)

But those cases proceed upon the theory of disaffirmance of the conveyance and not of its affirmance as here.

The motion must, therefore, be denied. Order signed.

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Proskauer, J.

The complaint alleges that the real estate involved was the property of the mother of plaintiff and defendant; that it was transferred by the mother to the defendant upon the defendant’s promise to hold the same for the joint benefit of her brother and herself and that after the death of the mother she would divide the property equally with her brother. The complaint does not pray that this conveyance be set aside. On the contrary, it expressly affirms the conveyance and seeks to enforce the oral trust upon which the plaintiff claims the conveyance was made and accepted. Thus, the plaintiff does not claim to have legal title. By the complaint he concedes that the legal title is in the defendant and asks the enforcement of a trust. This does not constitute an action in partition. There are authorities holding that where it is sought to set aside a conveyance and the result of this would be to leave the legal title in the plaintiff and the defendant and the 0 complaint prays for partition, the action is deemed one in partition. (Weston v. Stoddard, 137 N. Y. 119; McGuire v. McGuire, 201 App. Div. 71; Bryant v. Shaw, 190 id. 578; Curran v. Hosey, 153 id. 557; Leidenthal v. Leidenthal, 121 id. 269; Drake v. Drake, 61 id. 1; Holder v. Holder, 40 id. 255; Wagstaff v. Marcy, 25 Misc. 121; Best v. Zeh, 82 Hun, 232.)

But those cases proceed upon the theory of disaffirmance of the conveyance and not of its affirmance as here.

The motion must, therefore, be denied. Order signed.

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Bluebook (online)

126 Misc. 42, 212 N.Y.S. 612, 1925 N.Y. Misc. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenna-v-meehan-nysupct-1925.

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