(dissenting). Contrary to the view expressed by the majority, the evidence amply supports the finding by Cotton, J., at Trial Term of unjust enrichment on the part of defendant with respect to the Florida condominium. Thus, on direct, plaintiff in testifying about the purchase of the condominium said:
“So Molly — they’re dead, it’s no use talking, they went with me, they took me with the car and they came in and we find the *15condiminium [sic] and it was cheap enough, I said, unfortunately, I had my money with me that I took along for Florida, and I had $500.00 deposit and the owner says, ‘In two months, I can give you title right away, and I get, in two months, in February, you come and you get title.’
“ ‘We made up the date to take title and you take it over.’ So I went, I had the bankbook, $14,000. In the Greenwich Bank, I think it’s in the Greenwich, it was a couple of years, and I took a check from the bankbook and I went back two months later and they went with me. Molly went with me to the real estate and we made — they made me sigh [sic], I don’t know what did I sign? I trusted them. I trust all my children. My pocketbook was their pocketbook.
“So I gave them and I signed, I don’t know what I signed. And for a couple of years, my son-in-law used to take — pay my rent and pay everything that was in New York” (emphasis added). Plaintiff also testified in response to questioning on direct:
“Q. Did you ask Morris or Jeanette to put title to that condiminium [sic] in Jeanette’s name?
“A. No. I didn’t even know. In fact, when Sadie started as the real estate, asked her, why did they do it? So he says, we insist.” On cross-examination, the issue of whether plaintiff agreed to give a “gift” of a remainder interest in the condominium was explored at length by counsel. It appears clear that plaintiff did not know that her son-in-law, Morris Englander, had given defendant a remainder interest in the condominium. Thus, plaintiff testified:
“A. I didn’t know that it belonged to her [defendant]. I didn’t know. This is the dead one. Then I discovered when Sadie wanted to sell it [i.e., in 1981, not 1977 when purchased], she discovered that she’s the one that — no — they, they insist, if I die, it goes right to her.
“Q. Who insisted?
“A. The one sho’s [sic — who’s] dead, my daughter —
“Q. And did you agree with him?
“A. She didn’t know for nothing. She wasn’t there. She wasn’t alive then.
“Q. Correct. And I agree with you. But did you agree with your son? Wasn’t his name Englander —
“A. He does everything for me. He paid my rent, I didn’t know from nothing. I trusted my daughter and my son-in-law. They took me and whatever they say, whatever the [sic] tell me to sign, I sign.
*16“Q. And his name was Englander. Wasn’t it?
“A. Yes.
“Q. And your daughter’s name was what?
“A. Same thing.
“Q. Englander. And didn’t they have two children?
“A. It has nothing to do with their children. I had nothing to do with their children. When I bought this, it was through the paper. I went through the paper and bought this condiminium [sic]. So they advertised in the paper. I didn’t expect nothing and it was a bargain, so I said, T have $500.’ I went in the bank. I gave her a deposit of $500. because I came to — so they pay and I came in two months later to get the title.
“Q. And what happened when you got title?
“A. When I have title, I had the check in the Greenwich Bank. It was taken out. It was due.
“Q. Who took the money out of Greenwich Savings Bank?
“A. I took a check. I myself, and went to Florida in February, and I went to Florida and went on a Friday with my daughter and with my son. They took me.
“Q. Which daughter and which son?
“A. She’s dead. The son-in-law is dead and my daughter is dead.
“Q. That’s Englander. Is that correct?
“A. Yes.
“Q. And when you went down and you paid for it, did you tell them who you wanted that condiminium [sic] to go to?
“A. There was no name.
“Q. Didn’t you just tell us that you wanted Jeanette to have it?
“A. I didn’t want — when Sadie started to ask why this here, insists, so she ask the real estate, she said, ‘Why does it made like that?’ He said, ‘My son-in-law insists, that if anything, if I die, it goes right to her. No trouble.’ So he made it like that.
“Q. And you agreed with it at that time?
“A. I didn’t know. I didn’t know what they were doing to me. I was stupid * * *
“Q. Going back to when you were there in Florida at the time of the title closing, who was present at that title closing?
“A. Just Molly and Morris, my daughter and son-in-law.
*17“Q. Were you there?
“A. I don’t know what they were doing. They were taking care. I don’t know what they did with the real estate, and I gave them the check, $14,300.00 was their fee” (emphasis added).
Sadie Dietz, plaintiff’s daughter and older sister of defendant, testified that her mother “always wanted to own something that she could call her own * * * she was determined to own a piece of property.” Mrs. Dietz also testified Morris Englander took care of the apartment and that her mother gave him the money for the monthly maintenance payments on the apartment.
While this court has the power to review the facts and weigh the evidence and in a proper case reverse the determination of the trial court as against the weight of the evidence, the original trier of the facts, Trial Term, herein possessed a great advantage in seeing and hearing the witnesses at firsthand. The fact that the court at nisi prius was better able to evaluate the subtleties of family relationships and to pass upon the credibility, intelligence, bias and other qualities of the witnesses tending to affect the weight and value of their testimony requires that great consideration be given to Trial Term’s finding (Smith v Smith, 273 NY 380). The eyes and ears of the trial must be those of the Judge who presided, not those of the Justices of the appellate court. The demeanor, the emphases and nuances cannot be reconstituted from the cold words of the record. The decision of the Trial Judge on the facts should not be lightly disturbed by a court which can glean the facts only from the printed pages of a record (see Rives v Bartlett, 215 NY 33). This is especially true in the instant case, where the testimony, as can be seen from the quotations herein, is disjointed and rambling.
The majority finds that plaintiff intended to make a gift of the remainder interest in the property. However, Trial Term concluded that: “The proof in the case at bar demonstrates that the plaintiff had no intention to give the defendant a gift of the remainder interest.” The issue of donative intent is to be determined by the trier of the facts (Matter of Housman, 224 NY 525, 527; Matter of Kilts, 54 AD2d 772, 773).
Viewing the evidence in the light most favorable to the successful party (Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379) the finding of the trial court regarding plaintiff’s intent must be upheld as supported by the record.
As conceded by the majority, the equitable remedy of constructive trust is a doctrine of some elasticity. It is undisputed that defendant did not know of the remainder interest given to her by Morris Englander at the time of the property’s purchase. *18“Unjust enrichment, however, does not require the performance of any wrongful act by the one enriched * * * Innocent parties may frequently be unjustly enriched” (Simonds v Simonds, 45 NY2d 233, 242).
As Special Term found, the four factors enumerated in Sharp v Kosmalski (40 NY2d 119, 121) are present in this case. The majority asserts that the defendant never promised expressly or by her conduct to surrender her reversionary interest. However, Morris Englander occupied a fiduciary relationship to plaintiff, and plaintiff transferred $15,000 to him on his implied promise to purchase the condominium on her behalf.
In any event, we are enjoined by the Court of Appeals not to “rely heavily on formalisms and too little on basic equitable principles, long established in Anglo-American law and in this State and especially relevant when family transactions are involved. ‘A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief’ (Beatty v Guggenheim Exploration Co., 225 NY 380, 389 [Cardozo, J.], supra)” (Simonds v Simonds, supra, at p 243).
Accordingly, the judgment of the Supreme Court, Bronx County (Cotton, J.), entered April 15,1983, after bench trial, in favor of the plaintiff, should be affirmed.
Kupferman, J. P., Milonas and Alexander, JJ., concur with Sullivan, J.; Asch, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, entered on April 15, 1983, modified, on the law and the facts, without costs and without disbursements, to the extent of dismissing the second cause of action, which seeks relief with respect to the Florida condominium, and, except as thus modified, affirmed.