McGahan v. Brooklyn Savings Bank , 13 A.D.2d 838 ( 1961 )

In an action to enforce a number of alleged irrevocable trusts, defendant Twohy, individually and as executor under the will of James J. Delaney, deceased, appeals from an order of , the Supreme Court, Nassau County, dated March 13, 1961, denying his motion, pursuant to section 274 of the Civil Practice Act, to compel plaintiff to reply to the defense of the Statute of Frauds alleged in his answer, and granting plaintiff’s cross motion to strike out said defense. Order affirmed, with $10 costs and disbursements. None of the causes of action alleged in plaintiff’s complaint is based on a contract to establish a trust. The action is to recover money which plaintiff alleges was held by said decedent, for her benefit, by virtue of irrevocable trusts which he had created during his lifetime. If plaintiff fails to establish the causes of action pleaded, her complaint will be dismissed, regardless of whether or not the Statute of Frauds is pleaded as a defense. Nolan, P. ■ J., Beldock, Christ, Pette and Brennan, JJ,, concur.