Moglia v. Clark

256 A.D. 847, 9 N.Y.S.2d 413, 1939 N.Y. App. Div. LEXIS 5119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 1939
• Status: Published

Opinion

Prom an order granting defendant’s motion for judgment on the pleadings and the judgment entered upon such order dismissing the plaintiff’s complaint, the plaintiff appeals. Order and judgment reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The complaint alleges the conveyance of real property to the defendant-daughter of the plaintiff, relying upon her oral promise to hold the property in trust for certain specified purposes definitely alleged, and that the defendant has repudiated her promise, sold the property and claims absolute ownership of the proceeds. These allegations, if proven, are sufficient to establish a constructive trust and the plaintiff is entitled to relief in equity. (Sinclair v. Purdy, 235 N. Y. 245.) To hold otherwise would result in unjust enrichment under cover of the relation of trust and confidence. (Foreman v. Foreman, 251 N. Y. 237.) The fact that the alleged agreement is not in writing will not prevent recovery. (Goldsmith v. Goldsmith, 145 N. Y. 313.) Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.