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ROSE BERK v. VALLEY PREMIUM PLAN (12/16/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 16, 1968

ROSE BERK, APPELLANT,
v.
VALLEY PREMIUM PLAN, INC., ET AL., RESPONDENTS

Appeal by plaintiff from a judgment of the Supreme Court, Kings County, entered February 15, 1967 pursuant to an order of said court dated February 9, 1967 which granted defendants' motion to dismiss plaintiff's amended complaint on the ground that it fails to state a cause of action.

Rabin, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

Plaintiff sought a judgment declaring a certain agreement and mortgage void and canceling the mortgage of record on the ground that the instruments were given in connection with the compounding of a felony. Defendants moved to dismiss the amended complaint, inter alia, for failure to state a cause of action. They claimed that plaintiff, herself being a party to an agreement allegedly involving criminality and moral turpitude, could not obtain any relief, legal or equitable, against the other parties to the agreement. Special Term granted the motion insofar as it was based on failure to state a cause of action. We are of the opinion that the amended complaint states a cause of action insofar as it seeks a declaration that the mortgage is void (Cushing v. Hughes, 119 Misc. 39).

Disposition

Judgment and order reversed, on the law, with $10 costs and disbursements, and motion denied.

19681216

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