Opinion
May 9, 1949.
In an action to impress a trust, for the benefit of plaintiff, on certain real property in the name of defendant, she appeals from an order denying her motion to dismiss the complaint for insufficiency, and from an order granting, in part, plaintiff's motion for an examination of defendant before trial. Order denying defendant's motion to dismiss the complaint for insufficiency reversed on the law, with $10 costs and disbursements, and the motion granted, without costs, with leave to plaintiff to serve an amended complaint, if he be so advised, within twenty days after the entry of the order hereon. Appeal from order granting in part plaintiff's motion for an examination of defendant before trial dismissed, without costs, as academic, in view of the disposition of the appeal from the first order. There is no allegation in this complaint that defendant took title to this property without the consent or knowledge of the plaintiff, who paid the consideration, or that defendant purchased the property with money belonging to plaintiff in violation of some trust. (Real Property Law, § 94.) In the absence of such allegations, the property was, in legal effect, a gift to defendant. ( Weigert v. Schlesinger, 150 App. Div. 765, affd. 210 N.Y. 573.) A cause of action for the return of such a gift may not be maintained even if the gift was obtained fraudulently. (Civ. Prac. Act, art. 2-A; Andie v. Kaplan, 288 N.Y. 685; Josephson v. Dry Dock Sav. Inst., 292 N.Y. 666.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.