Opinion
March 28, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ. [ 19 Misc.2d 132.]
Appeal from an order denying defendant's motion to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice. The plaintiff was the owner of a bank account and was induced by the defendant to change the account to a joint one for the purpose of purchasing a two-family house in the name of the plaintiff. Thereafter the defendant, without the knowledge of the plaintiff, withdrew the money, closed the account and upon proper demand has failed to return the money to the plaintiff. The complaint alleges three separate causes of action, the first in fraud; second in misrepresentation and third, failure to use the money for the intended purpose [purchase of a house]. The motion — made without affidavits and before answering — is addressed to the complaint in that it failed to set forth a cause of action and that the County Court was without jurisdiction. On this appeal, the brief of the appellant does not contest the jurisdiction of the court, so we assume it is waived but, in finality, we find no merit to such claim. From a further examination of the brief of appellant it is apparent the claim of failure to set forth a cause of action is that the gist of the action is for a breach of contract to marry and which is prohibited as against public policy (Civ. Prac. Act §§ 61-a-61-f). The words in the complaint that apparently provoke defendant into such conclusion are contained in the first cause of action as follows: "and represented to the plaintiff that he loved her and wanted to marry her". Such allegation as contained in the paragraph [Fifth] is realleged in the second and third causes of action. If the words above quoted were eliminated the causes of action would still be good upon their face. As presently constituted, plaintiff is not suing for unliquidated damages as the result of breach of contract but for a definite sum of money rightfully hers. Order unanimously affirmed, with $10 costs to respondent and against the appellant.