Mastersanti v. Mascioli

Appellate Division of the Supreme Court of New York

Mastersanti v. Mascioli

13 A.D.2d 865, 214 N.Y.S.2d 932, 1961 N.Y. App. Div. LEXIS 11067

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

DecidedMay 9, 1961

StatusPublished

This text of 13 A.D.2d 865 (Mastersanti v. Mascioli) 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

Mastersanti v. Mascioli, 13 A.D.2d 865, 214 N.Y.S.2d 932, 1961 N.Y. App. Div. LEXIS 11067 (N.Y. Ct. App. 1961).

Pincite

Opinion

Appeal from an order of the Supreme Court at Special Term Avhich denied defendants’ motion to dismiss the complaint for insufficiency, the particular ground of attack being that the action is for breach of contract to marry and is thus prohibited by article 2-A of the Civil Practice Act. The complaint alleges that plaintiff conveyed realty to herself and defendant Mascioli “ upon the understanding and agreement that because of the relationship existing between [them] * * Mascioli would marry the plaintiff herein”; that she made the coiweyance “relying upon his promise to marry her”; that it Avas “further understood and agreed that in the event the said defendant * * * did not marry the plaintiff herein, it Avas never intended to cause an absolute conveyance * * * and that full title to said premises AA'ould remain in the possession of the plaintiff”; that said defendant neglected and refused to marry plaintiff and instead married the eodefiendant “ and that such actions on his part constituted a breach of the agreement.” There follow allegations that the conveyance was induced by defendant’s fraudulent representation that the would marry her “if she would make the conveyance ”, that plaintiff conveyed “ in reliance upon said promise ” and Avould not have done so had she known that defendant “ had no intention of carrying out the promise ”. Judgment is thereupon demanded for recon[866]*866veyance of the property. That the action is completely within the inhibition of the statute is abundantly clear. It is “ based upon * * * breach of contract to marry ” in plain contravention of the expressed legislative intent (Civ. Prac. Act, § 61-a; cf. Sulkowski v. Szewcgyk, 255 App. Div. 103, 105); and rests upon acts which, if the pleading were sustained, would “give rise” to the abolished right of action (Civ. Prac. Act, § 61-d). The subsidiary allegation of fraud does not save the complaint and, indeed, each of a number of authoritative cases have held unavailing the pleader’s considerably more explicit allegations of, and far greater reliance upon, fraudulent misrepresentations, which failed, nevertheless, to obscure the fundamental element of breach of promise of marriage. (See, e.g., Andie v. Kaplan, 288 N. Y. 685; Morris v. Baird, 269 App. Div. 948.) Respondent’s remaining points do not require discussion. Order reversed on the law and motion granted, without' costs. Gibson, J. P., Reynolds and Taylor, JJ., concur; Herlihy, J., dissents and votes to affirm.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from an order of the Supreme Court at Special Term Avhich denied defendants’ motion to dismiss the complaint for insufficiency, the particular ground of attack being that the action is for breach of contract to marry and is thus prohibited by article 2-A of the Civil Practice Act. The complaint alleges that plaintiff conveyed realty to herself and defendant Mascioli “ upon the understanding and agreement that because of the relationship existing between [them] * * Mascioli would marry the plaintiff herein”; that she made the coiweyance “relying upon his promise to marry her”; that it Avas “further understood and agreed that in the event the said defendant * * * did not marry the plaintiff herein, it Avas never intended to cause an absolute conveyance * * * and that full title to said premises AA'ould remain in the possession of the plaintiff”; that said defendant neglected and refused to marry plaintiff and instead married the eodefiendant “ and that such actions on his part constituted a breach of the agreement.” There follow allegations that the conveyance was induced by defendant’s fraudulent representation that the would marry her “if she would make the conveyance ”, that plaintiff conveyed “ in reliance upon said promise ” and Avould not have done so had she known that defendant “ had no intention of carrying out the promise ”. Judgment is thereupon demanded for recon[866]*866veyance of the property. That the action is completely within the inhibition of the statute is abundantly clear. It is “ based upon * * * breach of contract to marry ” in plain contravention of the expressed legislative intent (Civ. Prac. Act, § 61-a; cf. Sulkowski v. Szewcgyk, 255 App. Div. 103, 105); and rests upon acts which, if the pleading were sustained, would “give rise” to the abolished right of action (Civ. Prac. Act, § 61-d). The subsidiary allegation of fraud does not save the complaint and, indeed, each of a number of authoritative cases have held unavailing the pleader’s considerably more explicit allegations of, and far greater reliance upon, fraudulent misrepresentations, which failed, nevertheless, to obscure the fundamental element of breach of promise of marriage. (See, e.g., Andie v. Kaplan, 288 N. Y. 685; Morris v. Baird, 269 App. Div. 948.) Respondent’s remaining points do not require discussion. Order reversed on the law and motion granted, without' costs. Gibson, J. P., Reynolds and Taylor, JJ., concur; Herlihy, J., dissents and votes to affirm.

Cite This Page — Counsel Stack

Bluebook (online)

13 A.D.2d 865, 214 N.Y.S.2d 932, 1961 N.Y. App. Div. LEXIS 11067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mastersanti-v-mascioli-nyappdiv-1961.

Opinion

Related

Cite This Page — Counsel Stack