Schenkman v. Schenkman

275 A.D.2d 761

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1949
• Status: Published

Opinion

Per Curiam.

The record sufficiently discloses the right of the plaintiff to a judgment declaring that she is an equal partner in the business of the nursing home conducted at 2744-2746 Pearsall Avenue, Bronx, New York City, and entitled to an accounting. We order a new trial, however, instead of directing a judgment in the plaintiff’s favor, so that additional proof may be adduced on the phase of the ease relating to whether a trust should be impressed on any of the real estate in favor of the plaintiff. With respect to the various parcels, this would largely depend on whether the moneys used to purchase the same were derived from the profits of the business or came from other sources. The present proof is too meager on this aspect of the matter.

If the defendant’s income is so reduced by the eventual judgment in this suit as to warrant a reduction in alimony in the separation action between the parties, the defendant may make such application for relief in that action as may be proper in the circumstances.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dore, J. P., Cohn, Callahan, Yan Yoorhis and Shientag, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.