Rosenblatt v. Birnbaum

• Decision Date: 28 October 1965
• Citation: 264 N.Y.S.2d 521,212 N.E.2d 37,16 N.Y.2d 212
• Parties: , 212 N.E.2d 37 Philip ROSENBLATT, Respondent, v. Freda BIRNBAUM et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 521

264 N.Y.S.2d 521

16 N.Y.2d 212, 212 N.E.2d 37

Philip ROSENBLATT, Respondent, v. Freda BIRNBAUM et al., Appellants.

Court of Appeals of New York.

Oct. 28, 1965.

Edward Sharf, Kew Gardens, for appellants.

Lester Alan Baron and Milton B. Franklin, New York City, for respondent.

Abraham M. Lindebaum, Brooklyn, guardian ad litem, and Daniel Eisenberg, Brooklyn, for Dorrie and Wendy Rosenblatt, infants.

VAN VOORHIS, Judge.

The Appellate Division has denied a motion to dismiss the complaint for legal insufficiency. We think that the result is correct but for different reasons. A motion to dismiss a complaint cannot be granted if it contains any valid cause of action (Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 182, 133 N.E.2d 695, 696). This complaint does not present the question on which the Appellate Division divided, whether a wife can be subjected to an interlocutory judgment requiring her to render an accounting in equity of her expenditure of moneys paid to her under a separation agreement for the maintenance and support of children, as the trustee of an express trust.

This complaint alleges that a separation agreement was entered into between plaintiff and defendant Freda Birnbaum, who were formerly husband and wife, whereby plaintiff agreed to pay $1,000 per month to be used by her solely for the support and maintenance of their two children. Thereafter she obtained an Alabama divorce and married defendant Martin Birnbaum.

By paragraph 14 it is alleged: 'Upon information and belief, that subsequent to her marriage to Martin Birnbaum, defendant Freda Birnbaum undertook to divert a substantial part of the payments of $1,000.00 each month which moneys had been forwarded by plaintiff to defendant Freda Birnbaum solely for the support and maintenance of their children, Dorrie and Wendy for other purposes; and, more particularly, upon information and belief, a substantial part of said moneys which plaintiff had forwarded solely for the said children's support and maintenance was diverted by defendant Freda Birnbaum for the benefit of defendant Freda Birnbaum and her said present husband, defendant Martin Birnbaum.'

Next it is alleged that plaintiff complained to her about this, that she admitted to plaintiff that she had not been using all of the moneys forwarded to her for the children's support and was accumulating part of them as savings for the children, which is alleged to have been untrue.

Then follows the crucial allegation contained in paragraph 18, which reads: 'That prior to December 13, 1961, plaintiff offered to compromise the aforesaid controversy between himself and defendant Freda Birnbaum, involving defendant Freda Birnbaum's aforesaid diversion of the moneys forwarded to her by plaintiff solely for the support of their children, Dorrie and Wendy, and concerning plaintiff's aforesaid demand for an accounting by defendant Freda Birnbaum of the manner in which she had been using said moneys forwarded to her solely for said children's support, by plaintiff undertaking to make the following offer of settlement of said controversy, to wit: (a) That $300.00 out of the monthly payments of $1,000.00 which plaintiff would forward to defendant Freda Birnbaum for the support and maintenance of the children, would be allocated as moneys to be set aside as savings for the benefit of their said children, Dorrie and Wendy respectively; (c) that one-half of said allocated monthly payments of $300.00, namely, $150.00, would be deposited in such bank account to be opened for Dorrie when received by defendant Freda Birnbaum, as custodian for Dorrie, as savings for the benefit of Dorrie; (d) that the other $150.00 would be deposited by defendant Freda Birnbaum in such custodian account which she would open for Wendy upon receiving said moneys for said purpose from plaintiff each monty, which moneys would be each month, which moneys would be Wendy; and (e) that said moneys to be so deposited in said custodian savings accounts for the benefit of Wendy and Dorrie, respectively, would be accumulated in such accounts until each of them, respectively, would attain the age of twenty-one years, at which time the accumulations in said respective accounts would be turned over to each of them respectively.'

It is then alleged that, in pursuance of said offer of compromise, plaintiff delivered 13 checks, specifically enumerated, of $150 each payable 'to the order of Freda Birnbaum as Custodian of' one or other of the two children respectively, $1,200 for one and $1,050 for the other.

Although defendant Freda Birnbaum indorsed and cashed these checks, aggregating $2,250, it is alleged that she

Failed and refused to deposit said moneys in custodian bank accounts to be held by her as Custodian for the

'Failed and refused to deposit said they each attained the age of twenty-one years as aforesaid; and upon information and belief defendant Freda Birnbaum diverted the said moneys entrusted to her for the purpose of depositing same in custodian bank accounts, as aforesaid for the benefit of the aforesaid children, to her own use and to the use of the defendant Martin Birnbaum, and defendant Freda Birnbaum has refused to account therefor although due demand therefor has been made.

'That by reason of the premises, defendant Freda Birnbaum should be declared trustee of the foregoing sum of $1,200.00 which has been entrusted to her by the plaintiff for the purpose of placing same in a custodian bank account for the benefit of the infant Dorrie Rosenblatt, and defendant Freda Birnbaum should be declared trustee of the sum of $1,050 which had been entrusted to her by the plaintiff for the purpose of placing same in a custodian bank account for the benefit of the infant Wendy Rosenblatt.'

A second cause of action alleges that defendant Martin Birnbaum knew that said $300 per month was being forwarded to Freda for deposit in custodian accounts as savings for said infant children, and, with such knowledge, used such moneys for his personal use.

The prayer for relief is that Freda be declared trustee of the aforesaid $1,200 for one child and of the aforesaid $1,050 for the other, that plaintiff or some other suitable person be appointed as trustee 'of the aforesaid $2,250.00 entrusted to and delivered by plaintiff to defendant Freda Birnbaum to be held in custodian bank accounts for the benefit of said infants,' that Freda be directed to account to such trustee 'for the said moneys so delivered in trust to her by the plaintiff, as aforesaid' (italics supplied), and that defendant Martin Birnbaum be directed to account to such trustee for any of said $2,250 which he has used for his own personal benefit.

Additional to said $300 per month paid to Freda as custodian for Dorrie and Wendy, the complaint alleges that plaintiff also forwarded to her $700 more per month, which, plus the $300, aggregated the $1,000 per month provided by the original separation agreement.

Even though defendant Freda Birnbaum purported to repudiate the $300 per month custodial arrangement by a letter from her lawyer labeled Exhibit C annexed to the answer which is probably not before the court on this motion addressed to the sufficiency in law of the complaint her indorsement and cashing of these checks committed her to the custodial condition on which they were delivered. 'What is said is overridden by what...