dissents in a memorandum as follows: I dissent from the holding of the majority because no gift has been shown on this record. The pleadings do not allege a gift. Plaintiff’s papers on the motion for summary judgment do not allege a gift. While plaintiff contends that the parties had an opportunity to argue orally that a gift was made, that argument is not a part of this record.
Plaintiff is a former executive vice-president of the defendant corporation. The individual defendant is the chairman of the board of directors of the defendant. Plaintiff and the individual defendant held those positions in August 1972 when the following letter was written by the individual defendant to the plaintiff:
"August 1972
"Mr. Melvin E. Rubenstein
"Rosenthal & Rosenthal, Inc.
"1451 Broadway
"New York, New York
"Dear Mr. Rubenstein:
"This refers to the premises located in the Town of South Hampton, located generally at Quogue, River-head Road and Old Country Road, comprising 192.857 acres. These premises were purchased by American Perfit Crystal Corporation and Imre J. Rosenthal, each owning 50%.
"This letter will confirm to you the fact that I have *160granted you 10% of my share, after all expenses and carrying charges, of any profit realized by me in the aforementioned venture.
"Very truly yours,
"Imre J. Rosenthal”.
This letter was written by the individual defendant on the stationery of the defendant Rosenthal & Rosenthal, Inc.
In its decision on plaintiff’s motion for summary judgment, the motion court stated that the issue is "whether the letter was intended to create a contractual right to a percentage of defendants’ profits, or whether it was intended to be, and was effective as, a gift.” The motion court noted that at oral argument, plaintiff had conceded that there was no consideration to support a contract "since the services had been provided in the past.” It went on to find that a gift of a percentage of the profits from the property was intended and made.
First, the amended complaint in this action does not allege a gift. Rather it alleges that in August 1972, plaintiff was given a bonus for services performed for the corporate defendant. That bonus, in part, allegedly consisted of the assignment of 10% of the profits on the property in question here. Specifically, paragraphs 9 through 14 of the amended complaint allege the following:
"9. In August, 1972, Plaintiff was given a bonus in addition to his regular salary, for his services performed for R & R, Inc.
"10. Said bonus, in part, consisted of an assignment by Rosenthal, acting individually and as Chairman of the Board of Directors of R & R, Inc., of ten (10%) percent of Rosenthal’s realized profit on the Quogue Property, after deducting all expenses and carrying charges.
"11. Alternatively, said bonus, in part, consisted of an agreement by Rosenthal, acting individually and as Chairman of the Board of Directors of R & R, Inc. to pay Plaintiff ten (10%) percent of Rosenthal’s realized profit on the Quogue Property, after deducting all expenses and carrying charges.
"12. In consideration of the agreement by Rosenthal to pay plaintiff ten (10%) percent of Rosenthal’s realized profit on the Quogue Property, plaintiff agreed to forego an immediate cash bonus.
"13. In consideration of the agreement by Rosenthal to pay plaintiff ten (10%) percent of Rosenthal’s realized profit on the Quogue Property, plaintiff agreed to continue his employment as Executive Vice President of R & R, Inc.
*161"14. The aforementioned assignment, or agreement, was set forth in a letter dated August 1, 1972 from Rosenthal to Plaintiff, a copy of which is annexed hereto as Exhibit 'A’ and incorporated herein and made a part hereof.”
Second, the papers in support of the present motion for summary judgment do not allege a gift. In his affidavit in support of the motion for summary judgment, sworn to on May 20, 1987, plaintiff states that in lieu of a cash bonus, he received a bonus consisting of 10% of the profit of the individual defendant Rosenthal with respect to the property. Paragraph 16 of the said affidavit reads as follows: "16. In August of 1972 I accepted as my bonus, in lieu of a cash bonus, the ten (10%) percent of Rosenthal’s profit with respect to the Quogue Property. I continued to act as Executive Vice-President for more than thirteen years, relying upon the good faith of Rosenthal to properly account to me and pay me my percentage when the Quogue Property was sold.”
In his affidavit opposing the motion for summary judgment, sworn to on June 4, 1987, defendant Imre Rosenthal states that the August 1, 1972 letter was not written to give the plaintiff a bonus for services performed for the corporate defendant. He states that the letter was written to reward the plaintiff for personal services which the plaintiff had rendered to the individual defendant. Paragraph 6 of the said affidavit reads as follows: "6. I have considerable personal means. It is and always has been my habit to reward people who render personal services to me. The only reason that I executed and delivered to Mr. Rubenstein the letter of August 1, 1972 was to recognize and reward him for the advice which he rendered to me over the years of our association prior to that date. At no time was the letter intended to be a bonus to Mr. Ruben-stein from Rosenthal & Rosenthal, Inc. nor was it given to him in order to induce him to forego a cash bonus from that corporation or to induce him to remain an employee thereof.”
In my view, the opposing contentions of the parties, specifically plaintiff’s contention that the August 1, 1972 letter was a bonus for services rendered to the corporate defendant and the individual defendant’s contention that said letter had nothing to do with services rendered to the corporate defendant, raise triable issues with respect to the intentions and actions of the parties. Moreover, there is no sworn document or, in fact, any document in this record which establishes that a gift was intended. If plaintiff now contends that a gift was intended, an amendment to the complaint should be made.
*162The present case is clearly distinguishable from Speelman v Pascal (10 NY2d 313 [1961]), which the majority contends is controlling here. In Speelman (supra, at 316), a single cause of action was pleaded, namely that the deceased had given a gift to the plaintiff of a percentage or percentages of his share of profits from various productions of the " 'Pygmalion Musical stage version’ ”, Here, on the other hand, plaintiff pleaded five different theories of action in five separate causes of action, namely, moneys had and received, breach of contract, fraud, an accounting and a constructive trust. Nevertheless, plaintiff seeks recovery on a sixth, unpleaded cause of action.
The most cogent factor against a summary judgment ruling of a gift is contained in the papers signed and sworn to by the plaintiff himself, papers which include a complaint, an amended complaint and an affidavit in support of the plaintiff’s motion for summary judgment. In none of thosfe documents does plaintiff allege that he received a gift in 1972. Thus from 1972 until a memorandum was submitted in support of the motion for summary judgment in May 1987 (a memorandum which is not a part of the record on appeal), plaintiff did not contend he had received a gift.
While the majority correctly contends that a court can amend the pleadings to conform to the proof if the proof is sufficient and no prejudice is shown, here the proof consists only of the 1972 letter without anything else even from the plaintiff.