Buono v. Hirsch , 29 A.D.2d 544 ( 1967 )

In an action alleging a conspiracy to defraud plaintiff of her real property and to compel her to execute her personal bond, and seeking judgment canceling a mortgage on the real property and other relief, defendant Hirsch appeals from a judgment of the Supreme Court, Westchester County, dated February 1, 1967, in favor of plaintiff. Judgment reversed, on the law and the facts, without costs, and case remitted to the Supreme Court, Westchester County, for the entry of judgment in accordance herewith. Findings of fact inconsistent herewith are reversed and new findings will be made as indicated herein. Settle order on five days’ notice. This action was tried jointly with Hirsch v. Buono Tire Co., (29 A D 2d 545) and involved substantially the same questions as were present in that case. For the reasons there stated, it is our opinion that plaintiff is not entitled to any relief as against defendant Hirsch. It was improper, therefore, to direct cancellation of the mortgage note and the mortgage on the real property, the chattel mortgage and the bond; to direct a reconveyance by defendant Buono Tire Co., Inc., of the real property involved; and to direct the execution of all instruments necessary to put the parties “in their status quo”. Christ, Acting P. J., Brennan, Rabin and Benjamin, JJ., concur; Hopkins, J., dissents and votes to affirm the judgment, on the opinion of the trial court. [54 Mise 2d 789.]