ZIEGLER v. ZIEGLER


10 A.D.2d 270 (1960)

Mildred Ziegler, Appellant, v. Mannie Ziegler, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

April 12, 1960.


Attorney(s) appearing for the Case

Irving I. Erdheim of counsel (Fred Lichtblau with him on the brief; Erdheim & Armstrong, attorneys), for appellant.

Emil K. Ellis (Jonas Ellis, Maurice Shire and Monte L. Morris with him on the brief), for respondent.

BOTEIN, P. J., BREITEL, VALENTE and STEVENS, JJ., concur in Memorandum; McNALLY, J, dissents and votes to reverse and order a new trial in opinion.


MEMORANDUM BY THE COURT.

Judgment affirmed, without costs. The bona fides of plaintiff's offer to return to defendant was properly an issue of fact to be determined by the trial court in the second action. This issue was decided adversely to plaintiff and there was adequate support in the record for such a determination. This is what distinguishes the instant case from Silberstein v. Silberstein (218 N.Y. 525) in which there was before the court only...

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