Mandelbaum v. Mandelbaum 1 A.D.2d 688

Under the allegations of the complaint, which for the purposes of this appeal must be considered as established facts, it appears that the decedent, in 1948, executed his deed to real property to the two appellants, Ms children, under an agreement whereby they would reconvey upon his demand arid whereby the decedent retained all the incidents of ownership. The decedent died in 1955 without having demanded reconveyance, and left a will devising his real property to the plaintiff, his widow, and the appellants. This *689action is brought by the executors under the decedent’s will and the widow, individually, to enforce the agreement to reconvey upon demand. The appeal is from an order denying a motion pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice to dismiss the complaint as to the respondents. Appellants contend that the complaint as to the respondents is insufficient in law in that sections 91, 92, 93, and 96 of the Real Property Law require a holding that the agreement did not create a valid or active trust, that the decedent at all times remained the legal and equitable owner of the real property, that the ownership thereof vested in the devisees immediately upon the decedent’s death, and that respondents have no interest in the property. Order affirmed, with $10 costs and disbursements. Ho opinion. Wenzel, Acting P. J., MaeCrate, Beldock, Murphy and Ughetta, JJ., concur.