Hedrick v. Van Ingen

243 A.D. 654

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1935
• Status: Published

Opinion

Appeal by plaintiff from a judgment of the Supreme Court entered in the office of the clerk of the county of Albany on October 27, 1933, dismissing plaintiff’s complaint. The action was brought by plaintiff to rescind on the ground of fraud a sale by defendants to plaintiff of bonds of the par value of $10,000 of the city of Brigantine in the State of New Jersey. Plaintiff also asked a money judgment against defendants for $10,000. The case was tried before an official referee and he dismissed the complaint and stated in Ms opinion that he did not pass upon the merits of the controversy. The referee based his dismissal on the ground that plaintiff made a defective tender of the bonds in question to defendants and also on the ground that plaintiff had been guilty of laches which barred his right to recovery. The judgment appealed from is reversed on the law and facts and a new trial granted, with costs to appellant to abide the event, on the ground that the evidence not only justified but requires a determination of the controversy on the merits. The court reverses findings of fact contained in the referee’s decision numbered 3, 4, 5, 6, 7, 8, 9 and 10. The court disapproves of the conclusions of law contained in such decision numbered 1, 2, 3 and 4. The court also reverses findings of fact made by the referee proposed by defendants and numbered 2, 3, 11 and 12. The court also disapproves of the conclusions of law found by the referee proposed by defendants and numbered VI, VII and IX. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.