Ferrari v. Kienzler

21 Misc. 536, 47 N.Y.S. 1135

• Court: City of New York Municipal Court
• Decided: October 15, 1897
• Status: Published

Opinion

Per Curiam.

The direction of a verdict in favor of the plaintiff by the trial justice, in our opinion, was right. The acceptance of the draft by the defendant bound him to pay the same upon maturity, unless the acceptance was procured by fraud.

We find nothing in the case which would justify us in declaring that the acceptance was procured by fraud, even accepting the defendant’s statement as true, concerning the statements made to him and which he claims induced him to accept the draft.

We cannot find that any fraudulent statement was made to him. The most that happened, it appears, is that the person who presented the draft said that the ship upon which the goods were, was in sight, would shortly arrive, whereas as a matter of fact the goods had already arrived and were in the public storehouse, wherefrom they could have been obtained by the defendant’s brokers upon the payment of the legal charges, which plaintiff directed to be paid the defendants by his bankers here. Of course, the defendant was not required to have his brokers, have the goods released! in the way just suggested, but if that way was not satisfactory to him, he was certainly bound to rescind the contract of sale of the goods to him within a reasonable time and his failure to' do so would make him liable on the draft sued upon.

He did not attempt to rescind the sale until many months thereafter, when he returned the invoices and the other documents left him by the plaintiff’s agents and then it was in our opinion too late for him to disaffirm pr. disclaim the purchase, and consequently his liability upon the draft was complete. Judgment affirmed, with costs.

Present: Fitzsimons and Conlan, JJ.

Judgment affirmed, with costs.