Marcus v. Jacobs

In an action to declare illusory and void: (a) the transfer and deposit in a bank account of certain moneys, and (b) the conveyance of certain real property, and for other relief, plaintiff appeals from an order of the Supreme Court, Kings County, entered December 19, 1961, which granted defendant’s motion pursuant to rule 106 of the Rules of Civil Practice, to dismiss the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order reversed, with $10 costs and disbursements, and motion denied. The amended complaint alleges, inter alia, that plaintiff is the surviving spouse of one Ann Marcus, deceased, who, shortly before their marriage, transferred the principal part of her property consisting of certain moneys and a two-family dwelling, to herself and the defendant, her daughter by a previous marriage, as joint tenants with the right of survivorship; that the transfers were not intended in good faith to divest the decedent of her property or any interest therein; that defendant is a nonresident of this State; that prior to the decedent’s death defendant was never in possession and control of the real property; that after the purported conveyance decedent remained in possession of the premises, exercised dominion and control over them, received all the rents and profits therefrom, paid all operating charges and made all repairs and improvements thereon; and that the transfers were illusory, testamentary in character and void as against plaintiff’s rights of inheritance. In our opinion, the amended complaint states facts sufficient to constitute a cause of action (cf. Newman v. Dore, 275 N. Y. 371; Gillette v. Madden, 280 App. Div. 161; [980] Schnakenberg v. Schnakenberg, 262 App. Div. 234; Mottershead v. Lamson, 101 N. Y. S. 2d 174). Beldock, P. J., Christ, Hill, Rabin and Hopkins, JJ., concur.