Lechner v. Lechner , 136 N.Y.S.2d 291 ( 1954 )

-Appeals by plaintiffs and defendant from portions of a final judgment determining their respective interests in certain real property and settling defendant’s account. Judgment modified on the facts by striking from the second ordering paragraph the figure “ 25% ” and substituting therefor the figure “ 50% ”; by striking from the third ordering paragraph the figure “50%” and substituting therefor the figure “37%%”; by striking from the fourth ordering paragraph everything after the words “ impressing a trust of ” and substituting therefor the words and figures “12%% interest each, a total of 37%% interest in the plaintiffs’ favor as tenants in common with the defendant, Frank Lechner, who shall retain a complete 62%% interest for himself, in the real property, the subject of the within action, and it is further ”; by striking from the fifth ordering paragraph the words and figures “fifty (50%) percent” and substituting in place of the first of said words and figures the figure “37%%” and in place of the second, the figure “62%%”; by amending the account, settled in the sixth ordering paragraph, to include a net profit of $656.20 for the year 1946, and to provide that the balance in the hands of the defendant is $8,850.77 which he holds in trust and out of which he shall retain 62%% thereof or the sum of Five Thousand Five Hundred Thirty-one and 73/100 ($5,531.73) Dollars; by striking from the seventh ordering paragraph the words and figures “Four Thousand Ninety-seven and 29/100 ($4,097.29) Dollars” and substituting therefor the words and figures “Three Thousand Three Hundred Nineteen and 04/100 ($3,319.04) Dollars ”; by striking from the eighth ordering paragraph the figures “50% ” and substituting in place of the first of said figures the figure “37%%” and in place of the second, the figure “62%%”; and by striking from the ninth ordering paragraph the words and figure “one-half (%) ” and substituting therefor the figure “ 37%% ”. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as herein indicated. In our opinion, the record justifies a finding that the proportion of the value of the properties attributable to defendant’s contributions and efforts is 50%. Under the terms of the interlocutory judgment that interest is his own property; and all four parties have an equal interest in the remaining 50%. The account filed by defendant concededly does not cover the entire period for which he is chargeable; and the parties have stipulated that the net profit for the missing period is $656.20. Present — Nolan, P. J., Wenzel, MacCrate, Beldoek and Murphy, JJ.