Opinion
June 16, 1975
In an action for an accounting, plaintiff, whose marriage to defendant had previously been annulled, appeals from a judgment of the Supreme Court, Westchester County, dated February 20, 1974, which, after a nonjury trial, dismissed the complaint, without prejudice to the institution of an action at law. Judgment reversed, on the law and the facts, with costs; defendant is directed to account to plaintiff with respect to the items referred to in the complaint; and the action is remanded to Special Term for further proceedings not inconsistent herewith. Plaintiff brought this action for an accounting against her ex-husband, after their marriage had been annulled, for her share of the assets they acquired as wedding gifts and savings from their earnings, which defendant had placed in his individual bank account. In order to establish a cause of action in equity for an accounting, a fiduciary or agency relationship must be established (Schantz v Oakman, 163 N.Y. 148). In this case, the evidence at the trial indicated that wedding gifts given to the husband and wife jointly were placed by the husband in his personal savings account. This court finds that a constructive trust was created in favor of the wife for her share of the gifts because of the confidential relationship of the parties. Accordingly, plaintiff is entitled to an accounting. Even though plaintiff may have a legal remedy, she is not precluded from seeking equitable relief by way of an accounting predicated upon the existence of a fiduciary relationship (Fur Wool Trading Co., v George I. Fox, Inc., 245 N.Y. 215). Gulotta, P.J., Rabin, Hopkins, Martuscello and Shapiro, JJ., concur.