
    Antonio Benanti, Appellant, v Salvatore Benanti, Respondent.
    Argued October 25,1978;
    decided November 28,1978
    
      APPEARANCES OF COUNSEL
    
      Ralph C. Lewis, Jr., and Alex. Wiltse, Jr., for appellant.
    
      Charles H. Schaefer for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, without costs. The record demonstrates that neither plaintiff father nor defendant, his son, made any conscious decision with regard to legal title to the property in question or its equitable ownership. Both delegated that responsibility to the lawyer, who straightforwardly testified that he explained to the father that the effect of the deed was to pass indefeasible title to the son in order to accomplish the father’s purpose. Under the circumstances relief by constructive trust is unwarranted (see, generally, Simonds v Simonds, 45 NY2d 233, 241-242; Sharp v Kosmalski, 40 NY2d 119, 121). Thus, amendment of the pleadings to conform to the proof would have served no purpose.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  