Polo v. Stern , 291 N.Y.S. 911 ( 1936 )

In a judgment creditor’s action, judgment modified by striking from the eighth adjudging paragraph that part providing that defendant Israel Stem be directed to turn over to the receiver $2,498.07; and as modified unanimously affirmed, with costs to respondent, appellant. The fourth conclusion of law is disapproved in so far as it states that payments of money were made to Israel Stern upon a secret tmst as trustee for the defendant Abe Stern. There is no proof that Israel Stern has retained any sum other than his own. When the business was sold it appears without dispute that the part of the purchase price paid in cash was divided equally between Israel Stem and Bessie Stern, who claimed then that they were the owners of the business. The title of Israel Stem to the sum paid to him, was not challenged. Appeal by defendants from an order denying their motion to resettle the case on appeal. Order unanimously affirmed, with ten dollars costs. Appeal by defendants from an order denying defendants’ motion for a new trial or to reopen the ease to permit defendants to submit additional proof. Order unanimously affirmed, with ten dollars costs. Appeal by defendant Israel Stern from an order adjudging him in contempt. Order unanimously affirmed, without costs. Cross-appeal by plaintiff from the same order. Order unanimously affirmed, without costs. Appeal by defendant Bessie Stem from an order granting plaintiff’s motion to punish her for contempt. [161 Misc. 264.] Order unanimously affirmed, with ten dollars costs and disbursements, on the authority of Gildersleeve v. Lester (68 Hun, 532, 535; affd., 139 N. Y. 608); Matter of McBride (6 App. Div. 376); Rowley v. Feldman (84 id. 400); Harris v. Elliott (163 N. Y. 269, 275), and Mendelsohn v. Rosenberg (248 App. Div. 743). Present — Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ.