Alexander v. Vidootzky

49 Misc. 471, 97 N.Y.S. 992

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinions

Scott, J.

I do not consider that defendant’s agreement to pay for the policy of title insurance constituted the amount thus to he paid part of the consideration for the property. Although incorporated in the contract of sale, it was a separate and independent agreement. Although the action is upon the check, the defendant had the right to call in question the consideration upon which the check was given; and, although the agreement to pay $260 as written in the contract was absolute, the defendant should, I think, have been permitted to show that he was led to make a promise thus absolute in form in consequence of a false representation as to what the cost would be. The defendant’s position is that he agreed to take a policy of insurance already ordered by plaintiff; that he agreed to pay the Title Company’s charge; that plaintiff stated that was $260; that, in reliance upon that statement, he made the agreement, absolute in form, to pay $260, and that, in fulfillment of that agreement, he gave the check sued upon. He says, further, that the Title Company’s charge was less than $260 and that plaintiff knowingly misstated the fact. I think that defendant should have been permitted, if he could, to prove the fraud. This would not have involved any question of the assumption of equitable jurisdiction by the Municipal Court. Milella v. Simpson, 47 Misc. Rep. 690.

The judgment should, be reversed and a new trial granted, with costs to appellant to abide the event.

Gbeekbaum, J., concurs.