Opinion
Decided January 19, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH D. QUINN, JR., J.
Lynn Hanig for appellant-respondent.
Noel Tepper for respondent-appellant.
On summary consideration, defendant's cross appeal dismissed, without costs, upon the ground that defendant-appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). On plaintiff's appeal, order, insofar as appealed from, reversed, with costs, and case remitted to the Appellate Division for further proceedings in accordance with this decision. We agree with the Appellate Division that plaintiff's payment of household expenses from December of 1969 to the commencement of this action in 1976 cannot be considered a transfer to defendant so as to entitle her to impose a constructive trust upon defendant's bank account ( Fischer v Wirth, 38 A.D.2d 611). The court, however, failed to consider the testimony of the parties regarding deposits into defendant's savings account of moneys withdrawn from the parties' joint checking account from December of 1969 to the commencement of this action in 1976. Such deposits, if any, may constitute transfers so as to entitle plaintiff to an increase in the amount of the constructive trust to the extent of her interest in said sums. Accordingly, we remand for resolution of this question.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.