Jackson v. Howard

260 A.D. 1056, 24 N.Y.S.2d 488, 1940 N.Y. App. Div. LEXIS 6024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1940
• Status: Published

Opinion

In an action to rescind a contract of sale of real property, judgment reversed on the law, with costs, and complaint dismissed, with costs, on the ground that the record clearly shows that plaintiffs waived the fraud and adopted the contract as valid (1) by failure promptly to seek rescission upon knowledge of the fraud and, instead, by electing to regard the contract as valid for more than a year after such knowledge, during which plaintiffs repaired the dwelling and offered it for sale; and (2) by instituting an action for damages for fraud predicated on the validity of the contract and maintaining the same from August of 1938 to November of 1939. Conclusions of law Second, Third and Fourth are reversed and disallowed and the denials of defendant’s conclusions of law A, B and C are reversed and those conclusions are allowed. Hagarty, Johnston and Adel, JJ., concur; Lazansky, P. J., and Carswell, J., concur on the ground that by reason of delay in commencing this action, after full knowledge of the fraud, plaintiffs must be deemed to have waived the same and to have ratified the contract.