The opinion
MulRoney, /., dissenting: I agree with Judge Opper but I would like to add that my disagreement with the majority opinion is more than a conviction that the evidence does not justify the ultimate finding that the requisite view was not present.
Petitioner’s burden, under the regulation upon which he relies, was to prove the existence of postconstruction circumstances, which could not reasonably be anticipated at the time or during construction, to which the sale of his stock was solely attributable. The only circumstance to which it could be said the sale of stock was attributable was the circumstance of petitioner’s need for money in his development and construction business. Pie had been in that business rather continuously since 1947 when he started building houses for sale to veterans in Warwick, Rhode Island. He was, one could say, “between” construction jobs from December 1947 when the Warwick job was completed, and March 1948 when the Manning Gardens job was started, and from December 31, 1951, when the Manning job was completed until sometime before June 18, 1952, when the Mayflower job was started. The circumstance that his development and construction business would need money is not a circumstance that could not reasonably have been anticipated. I rather think any builder always anticipates his next job will necessitate his raising funds.
As I see it, the circumstance of the doctor’s advice that he needed more physical activity than apartment managing, has nothing to do with this case. This wholesome advice could have been followed by petitioner taking up golf or entering a dancing school. In any event, the advice was given less than 6 months after completion of construction and petitioner states that for a year and a half after construction his sole intention was to hold his stock to provide himself with a long-term investment and an income therefrom.
The majority likes to believe petitioner’s story that the doctor’s advice caused him to return to the development and construction business — if indeed he ever left it. I cannot see how that would make the doctor’s advice a circumstance to which the sale of the stock would be solely attributable. Petitioner says, in effect, such advice did not cause him to change his mind about continuing to hold his stock as an investment. The stock sale was not even proximately related to the doctor’s advice. It may or may not have prompted petitioner to reenter the construction and development business. When about a year later petitioner makes a business decision to sell his stock to raise needed funds for such business, it can hardly be said the doctor’s advice is a circumstance to which the stock sale will be solely attributable. I respectfully dissent.
Opper, Tietjens, Ratjm and Pieege, JJ., agree with this dissent.