261 A.D. 922 | N.Y. App. Div. | 1941
In an action to set aside a conveyance of real property on the ground of fraud, order modified by striking out the second and third ordering paragraphs and by inserting in place thereof a provision denying the motion to dismiss the second cause of action set forth in the amended complaint. As thus modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to appellant. Drawing the most favorable inference from the complaint, the cause of action pleaded is that by fraud the defendants procured the signature of Leije Gitel Schachne to a deed at a time when she was unaware of its nature and that never thereafter during her lifetime did she discover the perpetration of the fraud. The gravamen of the complaint is actual fraud as distinguished from legal or constructive fraud, and section 48, subdivisión 5, of the Civil Practice Act is applicable. (Pitcher v. Sutton, 238 App. Div. 291; affd., 264 N. Y. 638; Carr v. Thompson, 87 id. 160, 163, 164; Smith v. Hamilton, 43 App. Div. 17; Chorrmann v. Bachmann, 119 id. 146; Glover v. National Bank of Commerce, 156 id. 247; Keys v. Leopold, 241 N. Y. 189, 192, 193.) The sole basis of the motion addressed to the second cause of action is that the cause of action was barred by the Statute of Limitations. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.
