Friedman v. Katz , 271 A.D.2d 836 ( 1946 )

Action in equity to obtain a determination of a claim to real property. Judgment for plaintiffs, adjudging that they have title to the premises described in the complaint, that defendants have no claim or right to any interest in the premises, and awarding damages to plaintiffs for the wrongful withholding of the property by defendants, unanimously affirmed, with costs. In the absence of a confidential relationship between the decedent and defendants,' or either of them, which was not established by the proof at this trial, there can be no adjudication of an existent trust (Fraw Realty Co. v. Natfmson, 261 N. Y. 396; Sinclair v. Purdy, 235 N. Y. 245), and the alleged oral agreement is without efficacy. (Real Property Law, § 242.) Present — Hagarty, Acting P. J., Carswell, Johnston, Aldrich and Nolan, JJ.