Hirschhorn v. Kirstein
| Decision Date | 09 February 1962 |
| Citation | 226 N.Y.S.2d 335,34 Misc.2d 229 |
| Parties | Rahle HIRSCHHORN v. Sidney KIRSTEIN and Jennie Kirstein. |
| Court | New York Supreme Court |
Siegelbaum & Lo Presti, New York City, for plaintiff.
Holtzman, Sharf, Mackell & Hellenbrand, Kew Gardens, for defendant.
In this action to impress a constructive trust in plaintiff's favor upon certain real property, defendants move to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice on the ground of legal insufficiency and for judgment dismissing the complaint, pursuant to rule 107, subdivision 5, on the ground that the cause of action set forth therein did not accrue within the time limited by law for the commencement of an action thereon and, pursuant to subdivision 7, upon the further ground that the contract upon which the cause of action is founded is unenforceable under the statute of frauds.
The complaint sets forth one cause of action wherein it is alleged that plaintiff, who is the mother of defendant, Jennie Kirstein, contributed the sum of $2,000 towards the $18,000 purchase price of a two-family home at the request of her daughter and her daughter's husband, defendant Sidney Kirstein; that in consideration of plaintiff furnishing said sum defendants agreed 'to grant to the plaintiff a 50% interest in the said property' provided that plaintiff would pay her pro rata share of the mortgage payments, which mortgage was then in the sum of $11,000, and, in addition thereto, pay one-half of all additional carrying charges; that in reliance upon the promises of defendants plaintiff did contribute the sum of $2,000 and title to the house was taken in the name of defendant Sidney Kirstein on October 14, 1947; That thereafter on December 29, 1952, defendant Sidney Kirstein executed a deed conveying the home to his wife and to himself; that plaintiff has paid to the defendants a sum in excess of the agreed share of the carrying charges; that defendants do not and never did intend to preserve plaintiff's interest in the property; that defendants have threatened to assign, sell, transfer or otherwise encumber the property; and that plaintiff has demanded of the defendants that they convey title to the property from themselves to the plaintiff, setting forth plaintiff's 50% interest in the premises.
In the opinion of the court, plaintiff has sufficiently stated a cause of action to impress a constructive trust upon the property, and consequently the first branch of the motion is denied. (Foreman v....
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Tichonchuk v. Orloff
...Thus the question of whether the statute of limitations is a bar to the instant action must await the trial. (See Hirschhorn v. Kirstein, 34 Misc.2d 229, 226 N.Y.S.2d 335.) The cross-motion with respect to the granting of summary judgment upon the counterclaim is granted and an assessment o......
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