Schumacher v. Goldovsky — 209 A.D. 909

Majority

p. 909

Martin Schumacher, Respondent, v. Henry Goldovsky and Others, Appellants, Impleaded with Others, Defendants.

Judgment unanimously affirmed, with costs. The evidence shows a gross fraud perpetrated upon the plaintiff through collusion between his attorney and the uncle of the attorney, who took advantage of plaintiff’s ignorance to defraud him. Neither one of them took the witness stand or offered any defense. The findings of the learned trial justice are amply sustained by the evidence. The defendant Goldovsky by his fraudulent conspiracy with his nephew, plaintiff’s lawyer, became a trustee for plaintiff ex maleficio, and the judgment directing him to transfer the property thus wrongfully obtained to plaintiff, upon receiving the amount actually paid by him, less the fraudulent rental collected from plaintiff, appears to be just and proper. There

p. 910

is no evidence in the record to sustain the claim for expenditures alleged to have been made on the property by Goldovsky as suggested in the points of his counsel. For obvious reasons he did not take the witness stand or offer any evidence of such expenditures. Present — Kelly, P. J., Rich, Kelby, Young and Kapper, JJ.