Tsai v. Tsai

39 A.D.2d 652, 331 N.Y.S.2d 691, 1972 N.Y. App. Div. LEXIS 4649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on May 7, 1971, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs and without disbursements. The complaint is clearly defective since there is not the slightest suggestion on its face or in the letter annexed to the complaint that any consideration passed or was to pass from the plaintiff wife to the defendant husband in return for the offer to transfer the stock. The letter addressed to plaintiff from defendant simply states he was “prepared” to give to plaintiff certain shares of stock. Palpably, without consideration, this letter represents an unenforceable promise (Benet v. Berkey, 57 N. Y. S. 2d. 329); nor is the marriage status itself a substitute for the missing link of consideration. (Kramer v. Kramer, 181 N. Y. 477, 481.) The stock was never delivered. Thus, there is no basis for grounding a cause of action on the theory of a gift, and there is no basis for converting the imperfect gift into a valid declaration of trust. (Young v. Young, 80 N. Y. 422.) Concur — Stevens, P. J., McGivera, Markewich, Kupferman and McNally, JJ.