First National Bank v. Wright , 202 N.Y.S. 774 ( 1924 )

Cochrane, P. J.

(dissenting):

The action was originally begun by Perry K. Willett. Alter his death the present plaintiff was substituted. The original plaintiff naturally would not and legally could not effectively allege in his complaint his own incompetency. He did not attempt to do so. The gravamen of the action is fraud and undue influence. (See Aldrich v. Bailey, 132 N. Y. 85.) While there is a general allegation of fraud the complaint specifies with considerable particularity that such fraud consisted in stating and representing to the plaintiff that the paper he signed related to the estate of Franklin Willett. The complaint then alleges that it was upon these latter statements and representations that the plaintiff was “ induced to execute said transfer, conveyance or assignment.” There is no evidence, as I view it, sustaining these allegations of the complaint. There was no request for its amendment. It is fundamental that a recovery must be according to the allegations and the proof. The trial justice dismissed the complaint. I find no proof sustaining its allegations, and, therefore, I think the judgment should be affirmed.