Opinion
279 A.D. 1014 111 N.Y.S.2d 826 JAMES A. ANDREWS, Respondent, v. SAMUEL LEBIS et al., Defendants, and RICHARD A. BRENNAN, as Cotrustee, Appellant. Supreme Court of New York, Second Department. April 14, 1952
In an action for broker's commission and damages by reason of alleged conspiracy, appellant, as cotrustee under a declaration of trust, appeals from an order which granted a motion by respondent to amend the title of the action in the original summons and in a supplemental summons and in an amended supplemental complaint to include appellant individually as well as a cotrustee, and permitted the assertion of a fourth cause of action in the amended supplemental complaint against appellant individually. Order affirmed, with $10 costs and disbursements. While appellant was sued originally solely as cotrustee and no cause of action was asserted wherein the cotrustees were alleged to have conspired with reference to the sale of the mortgage owned by the Brooklyn Trust Company, individually, it was not an abuse of discretion to permit the amendments and to authorize the assertion against appellant individually, of the fourth cause of action. From the allegations thereof, it cannot be said as matter of law that the three-year Statute of Limitations rather than the six-year statute governing fraud is applicable. The respondent realleges in the fourth cause of action the allegation of the second cause of action wherein he asserts there was concealment of negotiations with regard to the sale of the mortgage and failure to discover the alleged fraudulent acts until after the institution of the action. However, appellant by this determination is not precluded from contending that the fourth cause of action on its face is legally insufficient. (Cf. Andrews v. Lebis, 279 A.D. 1013, decided herewith.)
Nolan, P. J., Wenzel, MacCrate and Schmidt, JJ., concur; Carswell, J., not voting.