Brandes v. Agnew

844 There is no allegation in this complaint that defendant took title to this property without the consent or knowledge of the plaintiff, who paid the consideration, or that defendant purchased the property with money belonging to plaintiff in violation of some trust. (Real Property Law, § 94.) In the absence of such allegations, the property was, in legal effect, a gift to defendant. (Weigert v. Schlesinger, 150 App. Div. 765, affd. 210 N. Y. 573.) A cause of action for the return of such a gift may not he maintained even if the gift was obtained fraudulently. (Civ. Prac. Act, art. 2-A; Andie v. Kaplan, 288 N. Y. 685; Josephson v. Dry Dock Sav. Inst., 292 N. Y. 666.) Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.