Opinion
Argued April 29, 1964
Decided June 4, 1964
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, CHARLES A. LORETO, J.
Edward J. Bloustein and Irving Payson Zinbarg for appellant.
Paul L. Ross for respondent.
Judgment modified in the following memorandum and, as so modified, affirmed, without costs. The judgment should be modified to limit the scope of the constructive trust imposed on defendant Janina Moldock to an obligation to pay $25 a month for the benefit of Kazimierz Tebin, and the action remitted to Special Term for appropriate directions in the implementation of such obligation and, as thus modified, affirmed, without costs. On reviewing the differences between the Appellate Division and Special Term on appraisal of the facts, we conclude the record supports a finding that defendant, occupying a relationship of confidence and trust with decedent, undertook to devote a small part of the property given to her for the benefit of plaintiff. On the basis of defendant's own testimony this would approximate $25 a month. No such breach of confidence or of fiduciary obligation, either before or after decedent's death, has been established as would warrant forfeiture by defendant of the major interest in decedent's property which it was clearly decedent's intent that defendant should have.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN.