Opinion
January 19, 1953.
In an action for judgment directing conveyance of property in accordance with an express parol trust, order dismissing complaint on the ground that it is barred by the Statute of Frauds and because the plaintiffs are not the real parties in interest reversed on the law, with $10 costs and disbursements, and motion denied, with $10 costs. The complaint sufficiently alleges the creation of an express parol trust ( Foreman v. Foreman, 251 N.Y. 237; McKenna v. Meehan, 248 N.Y. 206; Wnuk v. Wnuk, 95 N.Y.S.2d 254, affd. 276 App. Div. 1102) as to which the provision in subdivision 1 of section 31 Pers. Prop. of the Personal Property Law, as well as section 242 Real Prop. of the Real Property Law, is inapplicable ( Blanco v. Velez, 295 N.Y. 224). It is alleged in the complaint that the grandmother of the plaintiffs and mother of the individual defendants, who had received the property, did so pursuant to the agreement. (Cf. Meltzer v. Koenigsberg, 277 App. Div. 1050, affd. 302 N.Y. 523. ) Under the allegations of the complaint which are susceptible of the interpretation placed upon them by the bill of particulars, the personal representatives of the estates of the promisor and of the mothers of the plaintiffs are not indispensable parties, and even if they were to be so regarded, the plaintiffs should have been afforded a reasonable time within which to join them. (Civ. Prac. Act, § 193.) Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur.