Rubin v. Rex Cole, Inc.

Appellate Division of the Supreme Court of New York

Rubin v. Rex Cole, Inc.

261 A.D. 640, 28 N.Y.S.2d 168, 1941 N.Y. App. Div. LEXIS 7399

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

DecidedApril 30, 1941

StatusPublished

This text of 261 A.D. 640 (Rubin v. Rex Cole, Inc.) 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

Rubin v. Rex Cole, Inc., 261 A.D. 640, 28 N.Y.S.2d 168, 1941 N.Y. App. Div. LEXIS 7399 (N.Y. Ct. App. 1941).

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Opinion

Per Curiam.

Respondent sought rescission of a contract to purchase a mechanical cooling device, and has recovered a judgment for all payments made. There was no express warranty as to the temperature which the machine would maintain. Fraud in the making of the contract was not pleaded, proved or submitted to the jury.

The machine was installed in May, 1934; payments were made for fourteen months following. Notice of rescission and to remove the property was not given until June 21, 1937. Earlier oral complaints, if found to have been made to the defendant’s selling agent and if competent, were statements in connection with requests for adjustments to and repairs of -the mechanism, and did not amount to rescission. (Sorenson v. Keesey Hosiery Co., 244 N. Y. 73, 76.) Notice of rescission was not given within a reasonable time, and no offer was made to return the property in substantially as good condition as when received. The judgment should be reversed and the complaint dismissed. (Pers. Prop. Law, § 150; Donovan v. Aeolian Co., 270 N. Y. 267; Sorenson v. Keesey Hosiery Co., supra.)

[641]*641The judgment should be reversed on the law, -with costs, and the complaint dismissed, with costs.

Hill, P. J., Crapser, Bliss, Heffernan and Schenck, JJ., concur. c

Judgment reversed on the law, with costs, and complaint dismissed, with costs.

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Per Curiam.

Respondent sought rescission of a contract to purchase a mechanical cooling device, and has recovered a judgment for all payments made. There was no express warranty as to the temperature which the machine would maintain. Fraud in the making of the contract was not pleaded, proved or submitted to the jury.

The machine was installed in May, 1934; payments were made for fourteen months following. Notice of rescission and to remove the property was not given until June 21, 1937. Earlier oral complaints, if found to have been made to the defendant’s selling agent and if competent, were statements in connection with requests for adjustments to and repairs of -the mechanism, and did not amount to rescission. (Sorenson v. Keesey Hosiery Co., 244 N. Y. 73, 76.) Notice of rescission was not given within a reasonable time, and no offer was made to return the property in substantially as good condition as when received. The judgment should be reversed and the complaint dismissed. (Pers. Prop. Law, § 150; Donovan v. Aeolian Co., 270 N. Y. 267; Sorenson v. Keesey Hosiery Co., supra.)

[641]*641The judgment should be reversed on the law, -with costs, and the complaint dismissed, with costs.

Hill, P. J., Crapser, Bliss, Heffernan and Schenck, JJ., concur. c

Judgment reversed on the law, with costs, and complaint dismissed, with costs.

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Bluebook (online)

261 A.D. 640, 28 N.Y.S.2d 168, 1941 N.Y. App. Div. LEXIS 7399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-rex-cole-inc-nyappdiv-1941.

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