Clotee Anderson, Respondent, v. Horace Anderson, Appellant, et al., Defendants, 22 A.D.2d 825

In an action to impress a trust upon real property, defendant Horace Anderson, plaintiff’s husband, appeals from an order of the Supreme Court, Kings County, made June 8, 1964 upon reargument, which granted plaintiff’s motion to strike out said defendant’s answer for his willful refusal to produce his books and records upon a pretrial examination, and directed that an inquest be taken and that judgment be entered against him and against the other two defaulting defendants. Order reversed, without costs, and plaintiff’s motion denied.

It is alleged in the complaint that the plaintiff wife commenced to contribute in 1947 toward the purchase price of a house with the intention that title be taken in the name of the husband and wife, as tenants by the entirety. In 1951 the house was purchased by the defendant husband solely in his own name. This action to impress a trust thereon was commenced in July, 1963. The said defendant was examined in 1964 primarily with respect to the aforesaid period between 1947 and 1951. His testimony was to the effect that he could not recall his income as of that time and that records pertaining thereto were missing.

A question with respect to income-tax records was objected to and never answered; the ruling thereon was reserved for the court but was actually never presented to the court for consideration. A reading of the examination of March 2, 1964 and the purported examination of February 25, 1964 fails to show willful refusal to produce any records in the possession of said defendant. Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.