Carlson v. Lamberti

In an action to impress constructive trust on the proceeds of certain Totten trusts, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered May 25, 1977, which is in favor of defendants upon the trial court’s dismissal of the complaint at the close of the plaintiffs’ case for failure to make out a prima facie case. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The trial court erroneously excluded the testimony of plaintiff Angelina Sachowski in which the witness recalled admissions which defendant Sofia Lamberti had made concerning conversations which she had had with the decedent. It was also error to sustain defendants’ objection to questions which had been put to Sofia during her examination before trial and which related to Sofia’s conversations with the decedent. Since Sofia’s statements were clearly not made in her own behalf or interest, they were not incompetent under the Dead Man’s Statute (see CPLR 4519). Finally, we believe that the court erred in dismissing the complaint at the close of the plaintiffs’ case. Drawing every favorable intendment from the evidence adduced by the plaintiffs, a prima facie case for the imposition of constructive trusts was made out (see Tebin v Moldock, 19 AD2d 275, mod 14 NY2d 807). Lazer, J. P., Gibbons, Gulotta and Margett, JJ., concur.