Bailey v. Bailey

Appellate Division of the Supreme Court of New York

Bailey v. Bailey

3 A.D.2d 847, 161 N.Y.S.2d 478, 1957 N.Y. App. Div. LEXIS 5852

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1957

StatusPublished

This text of 3 A.D.2d 847 (Bailey v. Bailey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Bailey, 3 A.D.2d 847, 161 N.Y.S.2d 478, 1957 N.Y. App. Div. LEXIS 5852 (N.Y. Ct. App. 1957).

Pincite

Opinion

In an action to set aside a conveyance of real property formerly owned by appellant and respondent as tenants by the entirety, and for a reconveyance of appellant’s former interest in the property, based upon respondent’s oral promise to pay appellant his investment within .90 days, or to return the quit claim deed, the appeal is from an order dismissing the complaint, pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice, on the ground that the promise is unenf orcible under the provisions of the Statute of Frauds. Order modified by striking from the ordering paragraph everything following the words “as to the defendant, Cora Walker Bailey” and by adding thereto a provision that appellant have leave, if so advised, to serve an amended complaint. As so modified, order unanimously affirmed, without costs. The amended complaint shall be served within 20 days after the entry of the order hereon. We are of the opinion that under the circumstances presented herein, appellant should have been given leave to amend his complaint. Present — Nolan, P. J., Wenzel, Beldoek, Ughetta and Kleinfeld, JJ.

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In an action to set aside a conveyance of real property formerly owned by appellant and respondent as tenants by the entirety, and for a reconveyance of appellant’s former interest in the property, based upon respondent’s oral promise to pay appellant his investment within .90 days, or to return the quit claim deed, the appeal is from an order dismissing the complaint, pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice, on the ground that the promise is unenf orcible under the provisions of the Statute of Frauds. Order modified by striking from the ordering paragraph everything following the words “as to the defendant, Cora Walker Bailey” and by adding thereto a provision that appellant have leave, if so advised, to serve an amended complaint. As so modified, order unanimously affirmed, without costs. The amended complaint shall be served within 20 days after the entry of the order hereon. We are of the opinion that under the circumstances presented herein, appellant should have been given leave to amend his complaint. Present — Nolan, P. J., Wenzel, Beldoek, Ughetta and Kleinfeld, JJ.

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Bluebook (online)

3 A.D.2d 847, 161 N.Y.S.2d 478, 1957 N.Y. App. Div. LEXIS 5852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-bailey-nyappdiv-1957.