Kettner v. Carson

44 A.D.2d 804, 355 N.Y.S.2d 408, 1974 N.Y. App. Div. LEXIS 5025

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered October 17, 1973, denying plaintiff’s motion to amend and denying defendant’s motion for partial summary judgment unanimously modified, on the law and in the exercise of discretion, by granting the motion to amend. The order is otherwise affirmed, without costs and without disbursements. The complaint states a cause of action for money loaned. On an examination before trial defendant admitted receipt of the funds but claimed that the payments constituted a gift. She further testified that the parties had had a close personal relationship and contemplated marriage. Plaintiff thereupon promptly moved to amend by adding causes of action for money had and received, and for the return of a gift made in contemplation of marriage pur-suant to section 80-b of the Civil Rights Law. Special Term denied the application to amend on the ground that plaintiff had previously denied that the advances were gifts and hence summary judgment would lie against him on this cause of action. The decision overlooks the fact that contradictory causes of action may be pleaded (Gonzales v. Concourse Plaza Syndicates, 27 A D 2d 516; Coron v. Lincks, 259 App. Div. 924). What the plaintiff in effect says is: While I maintain this was a loan, if defendant is correct in her claim that it was a gift, it was by her own interpretation one made in contemplation of marriage and she must return it. • The pleading is permissible as well as entirely just. Concur — McGivern, P. J., Nunez, Kupferman, Steuer and Capozzoli, JJ.