16 Misc. 2d 749 | N.Y. Sup. Ct. | 1959
This action seeks to impose a constructive trust upon the real property at 50-50% Barrow Street, New York City in plaintiff’s favor to the extent of a one-half interest therein and to enjoin its sale or other disposition by defendant and for an accounting of the income therefrom since its purchase by defendant. The parties are husband and wife, living separate and apart. This is but one of their marital difficulties. Since the commencement of this action the property has been sold with the consent of the parties and the proceeds are held in escrow subject to this disposition. Plaintiff and defendant were married in 1940. From 1943 to 1946 defendant served in the armed forces of the United States. On his return to this country the funds from their joint bank account were used to purchase a home at 1430 Jessup Avenue, Bronx County, New York City. This property was in their joint names, tenants by the entirety. There is dispute as to the extent to which the joint funds were derived from plaintiff’s or defendant’s earnings or both. This, however, is not essential to the proper determination of the issue herein presented by the evidence and testimony at the trial.
■ However unfortunate may be the marital situation of the parties, however much the plaintiff may win the sympathy of the court in her troubles, these are not enough to cast aside the basic requirements of the law for the judgment asked by plaintiff. These requirements are not present. Findings and conclusions having been waived, the above shall constitute the decision of this court.
Judgment shall be entered dismissing the complaint on the merits, but without costs.