Conroy v. Kelly

Appellate Division of the Supreme Court of New York

Conroy v. Kelly

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

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

DecidedApril 15, 1940

StatusPublished

This text of 259 A.D. 835 (Conroy v. Kelly) 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

Conroy v. Kelly, 259 A.D. 835, 19 N.Y.S.2d 389, 1940 N.Y. App. Div. LEXIS 6917 (N.Y. Ct. App. 1940).

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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 [836]*836a 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.

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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 [836]*836a 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.

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Bluebook (online)

259 A.D. 835, 19 N.Y.S.2d 389, 1940 N.Y. App. Div. LEXIS 6917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conroy-v-kelly-nyappdiv-1940.