Opinion
October 30, 1961
In an action, which is based on breach of contract, breach of trust and the fraudulent inducement of such breach, and which is brought to compel the specific performance of such contract and trust, to declare a deed of the real property (which is the subject of the contract and trust) to be void, to direct the conveyance to plaintiff of a one-half interest in the property, and for an accounting of the rents and profits of the property, the defendants appeal from an order of the Supreme Court, Kings County, entered January 16, 1961, denying their motion, made pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order reversed, without costs, and defendants' motion to dismiss the complaint granted, with leave to the plaintiff to serve an amended complaint within 20 days after entry of the order hereon. In our opinion, the complaint is insufficient. The only allegation as to the making of the contract and the declaration of the trust is contained in paragraph fifth of the complaint. Such allegation is wholly conclusory; it pleads an "agreement or understanding in the family". It fails to set forth the facts showing: (a) an enforcible contract or trust between plaintiff and defendant Albini or between plaintiff and defendants Franzese or between plaintiff and defendants Albini and Franzese; (b) the terms of such contract or trust; and (c) the consideration therefor. In the absence of an adequate statement of such facts, it cannot be determined whether an enforcible contract or trust was made or breached or who may be liable for any claimed breach. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur. [ 27 Misc.2d 426.]