On a motion of this character the court is not called upon to determine whether plaintiff will ultimately succeed upon the trial of the action. ( Moore v. Bonbright Co., Inc., 202 App. Div. 281, 283.) The tenor of the present complaint and the complaint in a former equitable action instituted by the assignee corporation ( Rockefeller Purchasing Corporation v. Rockefeller Center, Inc., 245 App. Div. 629; affd., 270 N.Y. 447) are similar. This court dismissed the complaint in the former action, not because of the use of the name Rockefeller by the assignee corporation, but upon the ground that equity would not take possession of real estate from one party and give it to another by mandatory injunction.
PER CURIAM. With or without allegations of conspiracy this action is to recover damages for fraud. ( Brackett v. Griswold, 112 N.Y. 454, 456; Moore v. Bonbright Co., Inc., 202 App. Div. 281, 293.) We dealt with this complaint in 221 Appellate Division, 438.
(See Clark v. Levy, 130 App. Div. 389; Emanuel v. Walter, 138 id. 818; Maxherman Co. v. Alper, 210 id. 389. And to the same effect see Moore v. Bonbright Co., 202 App. Div. 281.)
( Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362; Parker v. Pullman Co., 36 id. 208; Hughes v. Harlam, 37 id. 528; Lester v. Seilliere, 50 id. 239.) While we may refer to the prayer for relief to ascertain the precise nature and character of the action ( O'Brien v. Fitzgerald, 143 N.Y. 377; Horst Co. v. Stocker, 134 App. Div. 771), still the prayer for relief forms no part of the cause of action and is not conclusive. Without in any way passing upon the merits of the plaintiff's alleged cause of action, and taking the facts pleaded as admitted, as we must do on applications of this nature ( Moore v. Bonbright Co., 202 App. Div. 281), it would appear that the plaintiff sufficiently pleads a common-law action for moneys had and received. He alleges in effect that he delivered to the defendants a bond and mortgage for $4,000, with a certificate of satisfaction, upon the express condition and representation by defendants that the gift might be revoked and that the moneys represented by the bond and mortgage would be redelivered to the plaintiff at any time on his demand.