Rose v. Rose

128 N.E.2d 417, 309 N.Y. 713, 1955 N.Y. LEXIS 1446

• Court: New York Court of Appeals
• Decided: July 8, 1955
• Status: Published

Opinion

Per Curiam.

In this consolidated action commenced by a husband against his wife, plaintiff seeks to impress a trust as to all property received and held by the wife during their married life, to the extent of one half thereof, and for an accounting and related relief; also, plaintiff seeks to impress a lien of $6,000 upon certain premises in Queens County, in which they resided, for expenses incurred by plaintiff for taxes paid and for the maintenance and repair of the building thereat during their married life. The complaint in said part of the consolidated action alleges an agreement between the parties, made at an unspecified time during their married life, “ that * * * plaintiff would have a lien on said premises equal to the sum of money so expended ”, The Supreme Court at Special Term dismissed these complaints on the merits, holding that defendant’s affirmative defense in the nature of a release was sustained by the proof, and the Appellate Division has affirmed.

We think that the rather barren record before us, consisting of the merely formal testimony of but one witness, several exhibits and much colloquy, is inadequate to support a holding that defendant has established a release of the aforesaid actions.

The judgment dismissing the complaint should be reversed and a new trial granted, with costs to abide the event.

Coxway, Ch. J., Desmoxd, Dye, Fuld, Froessel, Vax Voorhis and Burke, JJ., concur.

The judgment of the Appellate Division and that of the Special Term should be reversed, with costs in all courts to abide the event, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.