First Ward Realty Co. v. 534 Eighth Avenue Corp.

258 A.D. 1086 | N.Y. App. Div. | 1940

In an action in equity, brought by plaintiff to procure a decree adjudging the corporate defendant a trustee ex maleficio of certain real property, and for other relief, an interlocutory judgment was entered after a trial before the court, without a jury, adjudging the corporate defendant to be a trustee ex maleficio of such real property, directing an accounting of rents, and awarding other relief. At the close of the trial, before judgment was entered, an order was made disposing of defendants’ motion to have four certain items of documentary proof received in evidence. Therein the motion was granted as to two of the items and denied as to the other two, which latter related (a) to certain transcripts of judgments against Stores Building Co., Inc., Morris Bienenstock and Fannie Bienenstock; and (b) to so much of the record of the condemnation proceeding for the Midtown Ttinnel Highway as affects the property in suit. From such interlocutory judgment and from so much of such order as denied their motion defendants appeal. Interlocutory judgment reversed on the facts and a new trial granted, with costs to the appellants to abide the event. Appeal from order dismissed, without costs. As there is to be a new trial, all findings of fact and conclusions of law are reversed. In our opinion the determination of the trial justice in favor of the plaintiff was against the weight of evidence upon the issue of the making of the alleged basic oral contract between plaintiff and the corporate defendant. In view of this determination the appeal from the order has become academic. Johnston, Taylor and Close, JJ., concur; Lazansky, P. J., and Carswell, J., dissent and vote to affirm the interlocutory judgment, and the order, in so far as appealed from.