Merker v. Merker

Appellate Division of the Supreme Court of New York

Merker v. Merker

12 A.D.2d 763, 210 N.Y.S.2d 411, 1961 N.Y. App. Div. LEXIS 12949

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

DecidedJanuary 31, 1961

StatusPublished

This text of 12 A.D.2d 763 (Merker v. Merker) 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

Merker v. Merker, 12 A.D.2d 763, 210 N.Y.S.2d 411, 1961 N.Y. App. Div. LEXIS 12949 (N.Y. Ct. App. 1961).

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Opinion

Judgment dismissing complaint after trial unanimously affirmed, on the law and on the facts, with costs to defendant-respondent. Plaintiffs, on the preponderance of the evidence, failed to establish any agreement or understanding, express or implied, by defendant Aaron Merker with the deceased to hold or use the savings bonds or life insurance for use of or delivery to plaintiffs and defendant Arthur Merker. Consequently, on this basis there was no warrant for imposing a constructive trust (Farano v. Stephanelli, 7 A D 2d 420, 423-425; Restatement, Trusts 2d, § 44). Similarly, on the preponderance, as well as the sufficiency, of the evidence plaintiffs failed to establish that any transfers of property were made in a fiduciary or confidential relationship, under circumstances, sufficient to require defendant Aaron Merker to establish the voluntary and bona fide character of the transfers, for failure of which another kind of constructive trust might be imposed (3 Pomeroy, Equity Juris. [5th ed.], § 943 et seq.; Restatement, Contracts, § 497 and the cases cited in the N. Y. Annotations). But even if the evidence had sufficed to establish such burden it was met by defendant Aaron Merker on the preponderance of the evidence. In consequence, neither in law nor in justice should the judgment of the trial court be disturbed. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [26 Misc 2d 362.]

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Judgment dismissing complaint after trial unanimously affirmed, on the law and on the facts, with costs to defendant-respondent. Plaintiffs, on the preponderance of the evidence, failed to establish any agreement or understanding, express or implied, by defendant Aaron Merker with the deceased to hold or use the savings bonds or life insurance for use of or delivery to plaintiffs and defendant Arthur Merker. Consequently, on this basis there was no warrant for imposing a constructive trust (Farano v. Stephanelli, 7 A D 2d 420, 423-425; Restatement, Trusts 2d, § 44). Similarly, on the preponderance, as well as the sufficiency, of the evidence plaintiffs failed to establish that any transfers of property were made in a fiduciary or confidential relationship, under circumstances, sufficient to require defendant Aaron Merker to establish the voluntary and bona fide character of the transfers, for failure of which another kind of constructive trust might be imposed (3 Pomeroy, Equity Juris. [5th ed.], § 943 et seq.; Restatement, Contracts, § 497 and the cases cited in the N. Y. Annotations). But even if the evidence had sufficed to establish such burden it was met by defendant Aaron Merker on the preponderance of the evidence. In consequence, neither in law nor in justice should the judgment of the trial court be disturbed. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ. [26 Misc 2d 362.]

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Bluebook (online)

12 A.D.2d 763, 210 N.Y.S.2d 411, 1961 N.Y. App. Div. LEXIS 12949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merker-v-merker-nyappdiv-1961.

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