Daas v. Daas

Judgment of the Supreme Court, Kings County, dated October 24, 1966, modified, on the law and the facts, by deleting its third, fourth and fifth decretal paragraphs, and by substituting therefor a provision dismissing the complaint as to defendant Frederick A. Daas. As so modified, judgment affirmed insofar as appealed from by the respective appellants, with costs to respondents against appellant Victor Daas. Findings of fact contained or implicit in the trial court’s opinion-decision inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, the record supports the conclusion of the Trial Justice that appellant Victor Daas agreed to hold the bonds, which were the subject of an alleged gift to him by decedent, in “ protective custody ” and, accordingly, there was sufficient ground for the imposition of a constructive trust upon said appellant (cf. Farano v. Stephanelli, 7 A D 2d 420; 1 Scott, Trusts [2d ed.], § 44.2). It is our further opinion, however, that there was no basis, either on the pleadings or the evidence adduced at the trial, for surcharging the executor, appellant Frederick A. Daas, personally, for any loss which may be sustained, as stated in the opinion below, “by reason of his failure to act,” or holding him personally liable for the expenses incurred as a result of this action. In view of the judgment as against appellant Victor Daas, which we are affirming, any remaining issue as to appellant Frederick A. Daas is academic. Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.