
    Irene Malmeth, as Administratrix of the Estate of Benjamin Malmeth, Deceased, Respondent, v Morris Malmeth et al., Appellants.
   —In an action to impose a constructive trust upon real property and to compel a conveyance of that property, defendants appeal from an order of the Supreme Court, Nassau County, dated March 2, 1979, which denied their motion to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed. This is an action wherein plaintiff, as administratrix of the estate of her deceased husband, seeks to impose a constructive trust upon a one-third interest in certain real property, and further seeks to compel a conveyance of that one-third interest to herself, as administratrix. The operative facts upon which the claim of constructive trust is based occurred on October 19, 1971, the date of the conveyance of the property to the defendants. The cause of action, therefore, accrued on that date (see Scheuer v Scheuer, 308 NY 447; Goldrick v Goldrick, 99 Mise 2d 749). A summons and a complaint in an earlier action, brought by plaintiff erroneously in her own behalf, had been served on February 28, 1976. A motion to dismiss that action had been denied in an order dated July 11, 1978; however, the order provided "in the alternative” that there be a "substitution of the proper plaintiff, i.e., the legally appointed representative of the decedent Benjamin Malmeth.” The court further directed that "all proceedings in this matter are hereby stayed for a period of ninety (90) days from the date of this order to allow the substitution of the proper plaintiff herein.” The so-called amended summons and complaint, with plaintiff as administratrix of the estate of Benjamin Malmeth, was not served until January 29, 1979. In view of the accrual of this action on October 19, 1971, such service was untimely (see Goldberg v Camp Mikan-Recro, 42 NY2d 1029), the action is time barred and the motion to dismiss the complaint must be granted. In view of the foregoing we do not address ourselves to the other ground urged by appellants, i.e., the Statute of Frauds. Mollen, P. J., Titone, O’Connor and Shapiro, JJ., concur.

Hopkins, J.,

dissents and votes to affirm the order, with the following memorandum: Since the defendants moved to dismiss the amended complaint, we must accept its allegations as true. The amended complaint alleges that the decedent, the husband of the plaintiff, administratrix of his estate, directed the defendants to purchase real property and furnished a sum of money toward the purchase; that the defendants took title to the property in their own name on October 19, 1971; and that thereafter defendants refused to convey an interest in the real property to the decedent upon his demands. The decedent died oil August 2, 1975. This action was commenced on February 28, 1976. These allegations denote a claim of a constructive trust. As the purchase of the property by the defendants, according to the claim, was made in accordance with the instructions of the decedent, the cause of action, for the purpose of the Statute of Limitations, accrued when the defendants repudiated the trust by refusing to convey the interest in the property to the decedent. The amended complaint does not state the dates of the decedent’s demands or the defendants’ refusals; it is thus a matter for proof at the trial to establish the dates of these events, which obviously must have occurred between the time of the purchase and the time of decedent’s death—that is, within the period between October 19, 1971 and August 2, 1975. It is the rule that an accrual of a cause of action for the enforcement of a constructive trust begins when the trust is repudiated by the trustee (Woolley v Stewart, 222 NY 347, 354; Savage v Savage, 63 AD2d 808; Pagano v Pagano, 207 Misc 474, affd 2 AD2d 756). Scheuer v Scheuer (308 NY 447) is consistent with that rule, since there the defendant took title to the property in his name alone—a breach of his agreement to take title in the name of both the plaintiff and himself. Moreover, the defendant almost immediately revealed his perfidy to the plaintiff and soothed her objections by saying that she must trust him. The focus of Scheuer was accordingly directed to the question whether his assuagements served to estop him from raising the Statute of Limitations as a defense. Here, however, the amended complaint facially alleges a breach of trust occurring not when the defendants purchased the property faithful to the decedent’s directions, but rather when the defendants refused to honor their commitment to convey the decedent’s interest to him. The proof at the trial must determine the actual facts, and the motion to dismiss because of untimeliness should now be denied. I would therefore affirm.  