[DOWNLOAD] "Joaquin De Ibero v. Isabel De Ibero" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Joaquin De Ibero v. Isabel De Ibero
- Author : Supreme Court of New York
- Release Date : January 29, 1969
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
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[33 A.D.2d 804 Page 804] In our opinion, the trial court failed to make an essential finding upon which the rights of the parties depend. Plaintiff
testified that, when he was hospitalized because of a stroke, his wife, the defendant, gave him for his signature a document
the nature of which he did not know, but which he did know was to be used in connection with a loan to him which defendant
had arranged with a third person. The document, signed by plaintiff, was a power of attorney, which defendant thereafter used
in securing the loan, by transferring to the lender, as collateral, plaintiff's shares of stock in an automobile sales agency.
In addition, the power of attorney was used by defendant in conveying to herself, individually, the parties' marital home
then held by them as tenants by the entirety. Defendant testified, and other evidence tends to support her proof, that plaintiff
intended that she use the power of attorney in conveying the marital home to herself, individually, in order to place that
property beyond the reach of plaintiff's creditors. However, at the trial's end, the court, in granting plaintiff judgment,
stated that "the Court does not find that the execution of the power of attorney by Mr. Dilbero on the 18th day of March,
1963, was with the express purpose or intent that by that power of attorney his wife would be authorized to deliver the deed
to the house in her name for her sole use and occupancy and benefit; that if there was any intention on his part for her to
utilize this power of attorney for that purpose, it was solely for the limited purpose of protecting this house from his personal
creditors and creditors of his business, and was not the intention on his part or with the design that this house would be
forever removed from his control and possession, use and benefit." In our opinion, the trial court failed to make an essential
finding of fact upon which the rights of the parties depend (CPLR 4213, subd. [b]). It failed to find, either affirmatively
or negatively, whether plaintiff had intended that defendant use the power of attorney to convey the marital home to herself.
The findings made may be read to mean that the court (1) concluded that plaintiff had intended that defendant use the power
of attorney in connection with the loan and (2) did not in fact decide whether plaintiff had intended that the power of attorney
be used by defendant to convey the marital property to herself, but also concluded that, if plaintiff did intend the latter
use, then the fact that his purpose was to hinder creditors did not disable him in this action from reacquiring his legal
interest in the property (contra, Pattison v. Pattison, [33 A.D.2d 804 Page 805301]