Hoch v. Goodhart

31 Misc. 789, 65 N.Y.S. 223

Opinion

Per Curiam.

The contract between the parties was made on Eovember 13, 1899, and although the plaintiff learned immediately of defendant’s alleged fraud, no attempt was made to dis-affirm the contract until the following January. Eot having elected to rescind promptly upon discovery of the fraud, the plaintiff must be deemed to have elected to affirm the contract (Hallahan v. Webber, 7 App. Div. 122), and she must be confined in her recovery to the damages sustained by reason of the fraud. Under the proofs, plaintiff cannot sue for the return of the purchase price.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.