Bailey v. Bailey , 3 A.D.2d 847 ( 1957 )

In an action to set aside a conveyance of real property formerly owned by appellant and respondent as tenants by the entirety, and for a reconveyance of appellant’s former interest in the property, based upon respondent’s oral promise to pay appellant his investment within .90 days, or to return the quit claim deed, the appeal is from an order dismissing the complaint, pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice, on the ground that the promise is unenf orcible under the provisions of the Statute of Frauds. Order modified by striking from the ordering paragraph everything following the words “as to the defendant, Cora Walker Bailey” and by adding thereto a provision that appellant have leave, if so advised, to serve an amended complaint. As so modified, order unanimously affirmed, without costs. The amended complaint shall be served within 20 days after the entry of the order hereon. We are of the opinion that under the circumstances presented herein, appellant should have been given leave to amend his complaint. Present — Nolan, P. J., Wenzel, Beldoek, Ughetta and Kleinfeld, JJ.