Brienza v. Brienza , 51 A.D.2d 1034 ( 1976 )

In an action inter alia (1) for a judgment declaring that certain deeds, dated May 16, 1949 (alleged in the complaint and amended complaints to have been dated May 11, 1949) and January 13, 1951, respectively, are fraudulent and void and (2) to impress a trust upon the subject premises, plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered March 14, 1975, after a nonjury trial, which, inter alia, dismissed the complaint. Judgment modified, on the law, by deleting the first decretal paragraph thereof and by substituting therefor provisions (1) declaring that the deed dated May 16, 1949 was validly executed and served to convey title to the subject premises in fee simple to Angelo Brienza and (2) otherwise dismissing the complaint, without costs. As so modified, judgment affirmed, with costs to respondent. The findings of fact are affirmed. The deed dated May 16, 1949, a bargain and sale deed without covenants against grantors’ acts, was executed by 10 kinsmen, as grantors; the grantee, one of the grantors, was less fortunate than the others and was physically handicapped. The trial court properly found that the said deed conveyed fee simple title to the grantee and that the appreciable delay in probating the grantee’s will and the genuineness of the 1951 deed were issues which were rendered moot. Gulotta, P. J., Martuscello, Latham, Margett and Shapiro, JJ., concur.