Kates v. Yeshiva University , 235 N.Y.S.2d 847 ( 1962 )

In an action by Jean Kates and Lester Levingson, two of the four children of the decedent, Isaac Levingson, to specifically enforce decedent’s written agreement (dated March 17, 1953) to make a will, under which his children would be the residuary legatees, in which action the other two children, defendants Abraham Levingson and Edna G. Katz, individually and as decedent’s executors, admitted the allegations in the complaint and asserted, as against the defendants Yeshiva University and the State Attorney-General, a cross complaint for the same relief as demanded in the complaint, the two plaintiff children and the two defendant children, individually and as executors, appeal jointly from a judgment of the Supreme Court, Kings County, entered January 29, 1962 upon the court’s decision, after a nonjury trial before a Special Referee, which dismissed the complaint and cross complaint on the merits (32 Mise 2d 145). Judgment modified on the law and the facts: (a) by striking out its first decretal paragraph which dismissed the complaint as against all the defendants; (b) by substituting therefor a provision dismissing the complaint against all the defendants except the defendant Edna G. Katz, in her individual capacity; and (c) by adding a decretal paragraph granting to plaintiffs the relief sought by them as against the defendant Edna G. Katz individually, and declaring that the decedent’s devise of the Dumont Avenue house to her is violative of his written agreement of March 17, 1953. As so modified, judgment affirmed, without costs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the relief sought against defendant Edna G. Katz individually should have been granted in view of her admissions and her prayer ,£or relief in her pleading. These were tantamount to a confession of judgment; and this is so even though she would have been entitled to dismissal of the complaint had she elected to contest the claim made against her. Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.