Greenberg v. Greenberg , 170 N.Y.S.2d 999 ( 1958 )

Action to impress a trust on real property and for other relief based on an agreement by and between a husband and wife, respectively the father of appellants-respondents and the mother of respondent-appellant and respondent. The agreement provides that the survivor devise, bequeath and grant property equally to the parties to the action. The appeals are from an order (1) granting in part and denying in part a motion to strike out as insufficient the defenses pleaded in the amended answer of the respondent-appellant and (2) denying a cross motion to dismiss the complaint (Rules Civ. Prac., rule 109). Order modified (1) by striking from the third ordering paragraph the word “denied” and by substituting therefor the words “granted, with leave to plaintiffs'to serve an amended complaint”, (2) by striking from said order the first ordering paragraph, and (3) by striking from the second ordering paragraph everything following the word “denied”. As so modified order affirmed, with $10 costs and disbursements to respondent-appellant. The amended complaint is to be served, if appellants-respondents be so advised, within 10 days after the entry of the order hereon. The agreement between the parents of the parties afforded to the survivor the right to convey certain premises “for good consideration”. The complaint pleads that the survivor conveyed said premises to herself and respondent-appellant. There is no allegation that the conveyance was without “good consideration”. This defect was not cured by the subsequent allegation that the survivor “ similarly caused ” other assets to be “ diverted and siphoned off without adequate consideration ”. Incorporation of allegations from one paragraph of a pleading into another should be by specific reference (Daly v. Haight, 163 App. Div. 234; Leisse v. Wilbet Realty Corp., 150 N. Y. S. 2d 825). Further, adequate consideration is not the same as good consideration (Mencher v. Weiss, 306 N. Y. 1; Mandel v. Liebman, 303 N. Y. 88; Walton Water Co. v. Village of Walton, 238 N. Y. 46; Strobe v. Netherland Co., 245 App. Div. 573). The complaint also fails to state a cause of action with reference to other assets. The agreement provided for equal distribution of all additional assets “held by the survivor” at the time of the survivor’s death. There is no allegation in the complaint that there were any additional assets. The alleged diversion of assets, during the survivor’s lifetime, was not prohibited by the agreement which determines the rights of the parties (Kendall v. Oakland Golf Club, 282 App. Div. 1057, affd. 307 N. Y. 753).

[8 Misc 2d 1056.] Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.