Kent-Juell Associates, Inc. v. Pink

248 A.D. 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

Order dismissing the complaint, with leave to serve an amended complaint affirmed, without costs. Plaintiff, if so advised, may serve an amended complaint within ten days from the entry of the order hereon. The complaint is prolix and redundant. The allegations —rexcept those contained in paragraph twelfth — do not state a cause of action. The mere silence of the title company — defendant liquidator’s predecessor at the time of the negotiations for the sale of the property — is not sufficient, in the absence of a trust or confidential relationship between the parties, upon which to predicate an action to rescind and annul the contract on the ground of fraud. (Dambmann v. Schulting, 75 N. Y. 55; Peoples’ Bank of City of New York v. Bogart, 81 id. 101; American Credit Co. v. Wimpfheimer, 14 App. Div. 498; cited with approval in Conlew, Inc., v. Uhler, 239 id. 380.) Paragraph twelfth, on its face, contains an allegation of affirmative misrepresentation; but the facts alleged should be restated in accordance with the provisions of section 241 of the Civil Practice Act. Lazansky, P. J., Young, Davis and Johnston, JJ., concur; Hagarty, J., not voting.