
    Edward P. Pattison, Respondent, v. Grace Pattison, Appellant.
   Memorandum: The complaint demands that a deed of real property from the plaintiff to his sister, the defendant, be declared “ to be delivered up and cancelled and annulled, and hereafter held for naught.” The allegations of the complaint purport to allege false and fraudulent representations by the defendant to the plaintiff for the purpose of obtaining title to the property. The judgment from which the defendant appeals adjudges that the deed is null and void and sets it aside. The complaint is insufficient as one to set aside a deed for fraud. Moreover, there was no proof of fraud on the part of the defendant and the Referee has found none. The judgment declaring the deed void is apparently based upon the fact that there was no consideration for the giving of the deed and upon a finding that defendant made an oral promise to reconvey the premises to plaintiff upon the happening of a contingency and has failed to keep such promise. The answer sets up as a defense, the Statute of Frauds. (Real Property Law, § 242.) The judgment setting aside the deed cannot be sustained as one in fraud. The complaint lacks essential allegations, necessary to state a cause of action in fraud. There, was no proof or finding of fraud. Neither can the judgment be sustained as one in an action for the declaration of a constructive trust, as argued upon the appeal. The complaint does not allege such a cause of action. There are no findings upon which to base a judgment in such an action and the relief given by the judgment is not that which would be given in such an action. The judgment declares the deed to be null and void and does not purport to impress a lien upon the property and direct reconveyance. We are not called upon to pass upon the question as to whether there was a promise to reconvey and whether the facts justify a finding of a constructive trust between brother and sister as an exception to section 242 of the Real Property Law. All concur. (The judgment is for plaintiff in an action to cancel conveyance of realty.) Present — Taylor, P. J., McCurn, Love, Kimball and Piper, JJ.  