Perin v. Mardine Realty Co.

5 A.D.2d 685, 168 N.Y.S.2d 647, 1957 N.Y. App. Div. LEXIS 3702

Opinion

Action by the purchaser of real property against the seller and its president, principal stockholder and manager, to recover damages for fraud and deceit because of the seller’s failure to disclose to the purchaser that the sewer connection from the subject premises ran, not to the street in front of the premises, in which there was no sewer, but, instead, through adjoining lands to the public sewer in another public street, without the consent of the owners of such adjoining lands. The appeal is from an order denying a motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action (Rules Civ. Prae., rule 106, subd. 4). Order reversed, with $10 costs and disbursements, and motion granted. Notwithstanding its lengthiness and abundance of conclusions, the complaint sets'forth in substance that the seller failed to volunteer the facts as to the location of the connection running to the public sewer. The seller was under no duty to speak. .The parties dealt at arm’s length, and the mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as an active fraud. (Foster v. Parker, 2 N Y 2d 848; Amend v. Hurley, 293 N. Y. 587; Peoples’ Bank of City of New York v. Bogart, 81 N. Y. 101; Noved Realty Corp. v. A. A. P. Co., 250 App. Div. 1.)

Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.