Loomis v. Perry

277 A.D.2d 1077

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1950
• Status: Published

Opinion

Appeal from an order of Supreme Court, Broome County, denying defendant’s motion to dismiss the complaint. The action is for a rescission of a contract for the sale of real property based on fraud. Plaintiffs are in possession under the contract. The complaint alleges that before the action was started the plaintiffs demanded return of the consideration paid by them and offered to “ surrender up their contract ”. They allege they continue to be willing to “surrender up said contract” if they get the consideration back and are paid any damages sustained “since said demand.” Defendant’s motion to dismiss was based on a failure to allege that the premises were surrendered before the action was commenced. The Special Term was of opinion this was not fatal to the pleading; that the court in equity would see to it that surrender was made before it would grant relief. In this the court was right. Besides that, the pleading alleges an offer to surrender “ the contract ” on return of consideration, which would usually be all that would be required before the action was heard. The pleaded language of the offer to surrender “ the contract ” must be construed liberally in favor of the pleader to mean a surrender of the benefits acquired under the contract, as well. Order unanimously affirmed, with $10 costs. Present — Foster, P." J., Brewster, Deyo, Bergan and Coon, JJ.