Di Cioccio v. Di Rienzo , 18 A.D.2d 1135 ( 1963 )

Interlocutory judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, with costs to the respondent. Certain findings of fact disapproved and reversed and new findings made. Memorandum: In this action to set aside a deed executed by defendant corporation conveying corporate realty to defendant Di Rienzo, its president, and for other relief, the trial court granted the disposition requested by plaintiff on the ground of the constructive fraud of the defendant president. The amended complaint sets forth a good cause of action for actual fraud and the record amply demonstrates that the circumstances surrounding execution of the deed were permeated with the fraud and deceit of defendant Di Rienzo. The proof also supports the finding of constructive fraud and therefore the judgment should be modified to include actual fraud as an additional ground for granting plaintiff relief. (Appeal from interlocutory judgment of Erie Trial Term setting aside a deed and directing an accounting by defendant Di Rienzo and other relief.) Present — Bastow, J. P., Goldman, Halpern and MeClusky, JJ.