Costa v. Pratt

277 A.D.2d 806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1950
• Status: Published

Opinion

Defendant has appealed from an order of the Albany Special Term of the Supreme Court striking out two separate defenses in her answer. The action is brought by plaintiff, as the administrator of Philip Costa, deceased, to impress a constructive trust on real property described therein, for an accounting of rents and profits and for a personal judgment. In substance the complaint alleges that decedent Costa conveyed the premises to defendant’s husband without any consideration and with the express understanding that defendant would reconvey the property to decedent or to his distributees at any time upon demand. It is also alleged that decedent acquired the property at an expense of over $9,500; that he paid the entire consideration and that defendant’s husband paid no part thereof. It is also alleged that after Costa’s death defendant’s husband refused to reeonvey the property and actually transferred the same to defendant without consideration and that she was fully aware of the circumstances under which her husband obtained a deed of the property from Costa. In her answer defendant alleges the Statute of Frauds as a defense and also that plaintiff is estopped from maintaining the action. The court properly struck out both defenses. Order affirmed, with $10 costs and -printing disbursements. Foster, P. J., Heffernan, Brewster and Coon, JJ., concur; Bergan, J., taking no part. [197 Misc. 252.]