274 A.D. 847 | N.Y. App. Div. | 1948
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We are of the opinion that the findings in favor of the defendant as to the first cause of action in Action No. 1 are against the weight of evidence. As to the second cause of action, the referee concluded that the plaintiff did not make out a case — that the purchase price of the property came from the family fund and that it was impossible to tell from the evidence what either party’s interest amounted to. When the parties sold the real estate to which they held title as tenants by the entirety, the presumption is that each became entitled to one half of the proceeds of the sale. (Villone v. Villone, 135 Misc. 512, affd. 228 App. Div. 884; Matter of Blumenthal, 236 N. Y. 448.) The burden thereupon shifted to the defendant wife to overcome the presumption, and the record presents, as we view it, a failure of proof on her part. All concur. (The judgment is for defendant in an action for money had and received.) Present — Taylor, P. J., McCurn, Larkin, Vaughan and Kimball, JJ.