Dawn v. Kelland

Appellate Division of the Supreme Court of New York

Dawn v. Kelland

271 A.D.2d 998

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 7, 1947

StatusPublished

This text of 271 A.D.2d 998 (Dawn v. Kelland) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dawn v. Kelland, 271 A.D.2d 998 (N.Y. Ct. App. 1947).

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Opinion

Since the demised premises may need to be used as a dwelling as part of their [999]*999use for a kindergarten boarding school, the question whether the latter was the exclusive purpose of the letting is left to the trial. (Of. Byrnes V. Balcom, 265 App. Div. 268, affd. 290 H. Y. 730; Bobitzek Investing Go. V. Colonial Beacon Oil Co., 265 App. Div. 749.) The second cause of action charging defendants with damages for fraud is regarded as alleging an affirmative misrepresentation that the premises could be used for a kindergarten boarding school with knowledge that such use was prohibited by the local zoning ordinance. So construed, the complaint alleges more than concealment of a material fact by defendants. Order unanimously affirmed, with $20 costs and disbursements. Present — Martin, P. J., Glennon, Dore, Cohn and Van Voorhis, JJ.

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Since the demised premises may need to be used as a dwelling as part of their [999]*999use for a kindergarten boarding school, the question whether the latter was the exclusive purpose of the letting is left to the trial. (Of. Byrnes V. Balcom, 265 App. Div. 268, affd. 290 H. Y. 730; Bobitzek Investing Go. V. Colonial Beacon Oil Co., 265 App. Div. 749.) The second cause of action charging defendants with damages for fraud is regarded as alleging an affirmative misrepresentation that the premises could be used for a kindergarten boarding school with knowledge that such use was prohibited by the local zoning ordinance. So construed, the complaint alleges more than concealment of a material fact by defendants. Order unanimously affirmed, with $20 costs and disbursements. Present — Martin, P. J., Glennon, Dore, Cohn and Van Voorhis, JJ.

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Bluebook (online)

271 A.D.2d 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawn-v-kelland-nyappdiv-1947.

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