Magee v. Condon

Headnote

Magee v. Condon, 176 App. Div. 909 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 14, 1917, affirming a judgment in favor of defendants entered upon an order of Special Term sustaining a demurrer to and directing a dismissal of the complaint, which alleged a cause of action against the devisees and legatees under the will of E. Kellogg

Beach pursuant to the provisions of section 1837 of the Code of Civil Procedure et seq., and section 101 of the Decedent Estate Law. The underlying claim against their testator was that a certain conveyance of two parcels of real property executed in 1867, by the surviving executor of and trustee under the will of one John H. Beach to said E. Kellogg Beach was invalid and that said E. Kellogg Beach took the property so conveyed impressed with a trust for the benefit of the beneficiaries under the will of said John H. Beach." The defendants demurred to the complaint on the grounds, first, that the plaintiff had not legal capacity to sue; second, that there was a defect of parties plaintiff or defendant; third, that causes of action were improperly united in the complaint, and fourth, that the complaint did not state facts sufficient to constitute a cause of action.