Lechner v. Lechner

-Appeals by plaintiffs and defendant from portions of a final judgment determining their respective interests in certain real property and settling defendant’s account. Judgment modified on the facts by striking from the second ordering paragraph the figure “ 25% ” and substituting therefor the figure “ 50% ”; by striking from the third ordering paragraph the figure “50%” and substituting therefor the figure “37%%”; by striking from the fourth ordering paragraph everything after the words “ impressing a trust of ” and substituting therefor the words and figures “12%% interest each, a total of 37%% interest in the plaintiffs’ favor as tenants in common with the defendant, Frank Lechner, who shall retain a complete 62%% interest for himself, in the real property, the subject of the within action, and it is further ”; by striking from the fifth ordering paragraph the words and figures “fifty (50%) percent” and substituting in place of the first of said words and figures the figure “37%%” and in place of the second, the figure “62%%”; by amending the account, settled in the sixth ordering paragraph, to include a net profit of $656.20 for the year 1946, and to provide that the balance in the hands of the defendant is $8,850.77 which he holds in trust and out of which he shall retain 62%% thereof or the sum of Five Thousand Five Hundred Thirty-one and 73/100 ($5,531.73) Dollars; by striking from the seventh ordering paragraph the words and figures “Four Thousand Ninety-seven and 29/100 ($4,097.29) Dollars” and substituting therefor the words and figures “Three Thousand Three Hundred Nineteen and 04/100 ($3,319.04) Dollars ”; by striking from the eighth ordering paragraph the figures “50% ” and substituting in place of the first of said figures the figure “37%%” and in place of the second, the figure “62%%”; and by striking from the ninth ordering paragraph the words and figure “one-half (%) ” and substituting therefor the figure “ 37%% ”. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as herein indicated. In our opinion, *1067the record justifies a finding that the proportion of the value of the properties attributable to defendant’s contributions and efforts is 50%. Under the terms of the interlocutory judgment that interest is his own property; and all four parties have an equal interest in the remaining 50%. The account filed by defendant concededly does not cover the entire period for which he is chargeable; and the parties have stipulated that the net profit for the missing period is $656.20. Present — Nolan, P. J., Wenzel, MacCrate, Beldoek and Murphy, JJ.