McGowan v. Blake

Appellate Division of the Supreme Court of New York

McGowan v. Blake

134 A.D. 165, 118 N.Y.S. 905, 1909 N.Y. App. Div. LEXIS 2803

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 8, 1909

StatusPublished

Cited by3 cases

This text of 134 A.D. 165 (McGowan v. Blake) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGowan v. Blake, 134 A.D. 165, 118 N.Y.S. 905, 1909 N.Y. App. Div. LEXIS 2803 (N.Y. Ct. App. 1909).

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Opinion

Gaynor, J.:

This is a suit for the rescission of a purchase of real estate by the plaintiff of the defendant for fraud. Payment was made by the conveyance of other real estate by the plaintiff to the defendant and paying the balance in cash. The plaintiff offers in the complaint to roconvey, and restore the defendant to her original position. The learned trial Judge dismissed the case because no notice of rescission and offer to restore were given to the defendant by the plaintiff before the suit was brought. This was error. The rescission has to be made in advance of an action to recover back money paid on a fraudulent contract of purchase, but not to bring a suit for a rescission. Such a suit is not based on a previous rescission; it is for a rescission, and it suffices that the complaint itself is a rescission by necessary offers to tender, to restore, etc. (Vail v. Reynolds, 118 N. Y. 297; Berry v. A. C. Ins. Co., 132 id. 49).

[166]*166The distinction between an action based on'a rescission and one for a rescission seems to be obscured or lost sight of by the language of some opinions.

The judgment should be" reversed.

Hirschberg, P. J., Jenks, Burr and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs

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Gaynor, J.:

This is a suit for the rescission of a purchase of real estate by the plaintiff of the defendant for fraud. Payment was made by the conveyance of other real estate by the plaintiff to the defendant and paying the balance in cash. The plaintiff offers in the complaint to roconvey, and restore the defendant to her original position. The learned trial Judge dismissed the case because no notice of rescission and offer to restore were given to the defendant by the plaintiff before the suit was brought. This was error. The rescission has to be made in advance of an action to recover back money paid on a fraudulent contract of purchase, but not to bring a suit for a rescission. Such a suit is not based on a previous rescission; it is for a rescission, and it suffices that the complaint itself is a rescission by necessary offers to tender, to restore, etc. (Vail v. Reynolds, 118 N. Y. 297; Berry v. A. C. Ins. Co., 132 id. 49).

[166]*166The distinction between an action based on'a rescission and one for a rescission seems to be obscured or lost sight of by the language of some opinions.

The judgment should be" reversed.

Hirschberg, P. J., Jenks, Burr and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs

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Bluebook (online)

134 A.D. 165, 118 N.Y.S. 905, 1909 N.Y. App. Div. LEXIS 2803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-blake-nyappdiv-1909.

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