20 A.D.2d 635 | N.Y. App. Div. | 1964
Order, entered on August 23, 1963, denying defendants-appellants’ motion to dismiss the amended complaint, unanimously reversed, on the law, with $20 costs and disbursements to appellants, and the motion to dismiss granted, with $10 costs. The first cause of action in our view fails to state a cause of action in fraud. In our opinion, if any cause of action is stated, it is one for injury to property which is barred by the three-year Statute of Limitations. (Civ. Prac. Act, § 49, suhd. 7; CPLR 214, subd. 4.) The second cause of action is legally insufficient in that it fails to state a cause of action in unjust enrichment; it fails to allege defendants’ receipt of profit or property rightfully the plaintiff’s. Plaintiff therein, in eonelusory fashion, equates the damages sought in the first cause of action with unjust enrichment of the defendants. The damages to the plaintiff do not necessarily constitute gain to the defendants. Concur — Breitel, J. P., Rabin, McNally, Stevens and Steuer, JJ.
