Conroy v. Kelly

259 A.D. 835, 19 N.Y.S.2d 389, 1940 N.Y. App. Div. LEXIS 6917

Opinion

Order denying motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and for further relief, reversed on the law, with ten dollars costs and disbursements, and motion to dismiss complaint granted, with ten dollars costs. The complaint is insufficient because there is no allegation therein of a tender to restore the $3,000 received by plaintiff as a consideration for the release delivered by her to defendant. Plaintiff would not receive $3,000 out of the estate unless the probate were set aside. There are allegations of irrelevant matter in the complaint. But the claim herein, if a proper tender is made, may be adjudicated in the Surrogate’s Court. (Surr. Ct. Act, § 40.) Under the circumstances, it will be unnecessary to give plaintiff leave to plead over. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.