Sheehy v. Cole

255 A.D. 814, 7 N.Y.S.2d 264, 1938 N.Y. App. Div. LEXIS 5418

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1938
• Status: Published

Opinion

In an action for the partition of real property, order denying appellant’s motion to dismiss the complaint because of failure to allege facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs, with leave to plaintiff to plead over within twenty days of the entry of the order hereon. The complaint does not show the plaintiff’s right to bring the action, nor does it allege the relationships, if any, between the decedent and the several parties. If the decedent died intestate that should be alleged. (Doane v. Mercantile Trust Co., 160 N. Y. 494.) The conclusions of law alleged are not sufficient to establish the right to maintain the action. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.