Opinion
May 22, 1967
Order of the Supreme Court, Westchester County, dated February 28, 1967, which denied defendant's motion inter alia to dismiss the complaint on the ground that the complaint does not state a cause of action, reversed, on the law, with $10 costs and disbursements, and motion (1) granted insofar as it was to dismiss the complaint on said ground, with leave to plaintiffs to move to amend the complaint, within 20 days after entry of the order hereon, on papers which shall sufficiently establish that such relief was requested in their opposing papers at Special Term and that they have good ground to support their causes of action, and (2) otherwise denied as academic. The complaint does not state a cause of action. It is alleged that plaintiffs are assignees of the widow and two of the surviving children of one Alexander Wiegand, deceased, of all their rights of action against defendant by reason of his conveyance of certain real property located in Mount Kisco, New York. It does not appear from the complaint that plaintiffs' assignors had any right of action against defendant because of that conveyance. Although defendant, who was a tenant in common of the property, having a 1/4 interest therein, purported to convey title in fee by means of said conveyance, the deed actually conveyed only his 1/4 interest and did not divest plaintiffs' assignors of their rights in the property or their title thereto (Real Property Law, § 245). Moreover, if it be assumed that plaintiffs' assignors could and did assign to plaintiffs a cause of action for damages for fraudulent representations made to Alexander Wiegand, it does not sufficiently appear from the complaint that such representations were made to him, that he relied thereon or that he was damaged thereby. Neither is the complaint sufficient to plead a cause of action for conversion of property belonging to plaintiffs' assignors or Alexander Wiegand. Plaintiffs should be permitted to move to amend their complaint, on papers which shall sufficiently establish that such relief was requested in their opposing papers at Special Term and that they have good ground to support their causes of action (see CPLR 3211, subd. [e], as amd. in 1965). In view of the fact that the complaint does not state a cause of action, we have not considered or determined the sufficiency of the defenses of the Statute of Limitations or the application for summary judgment. Ughetta, Acting P.J., Christ, Brennan, Hopkins and Nolan, JJ., concur.