Weber v. Freifeld

Appellate Division of the Supreme Court of New York

Weber v. Freifeld

204 A.D. 413, 198 N.Y.S. 122, 1923 N.Y. App. Div. LEXIS 9483

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

DecidedFebruary 9, 1923

StatusPublished

Cited by1 cases

This text of 204 A.D. 413 (Weber v. Freifeld) 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

Weber v. Freifeld, 204 A.D. 413, 198 N.Y.S. 122, 1923 N.Y. App. Div. LEXIS 9483 (N.Y. Ct. App. 1923).

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Opinion

McAvoy, J.:

The'plaintiffs bought of the defendants a lease of premises containing a rooming house and the business therein conducted, and the furniture therein, and claim that it was represented that the house could be used for the purpose of a rooming house and that the furniture therein was the defendant-seller’s property.

They allege that the furniture was not defendants’ property and thereafter was removed, and that they cannot use the house for roomers by reason of a provision of the lease that it may be used solely as a private dwelling.

The action is in equity for an injunction restraining the enforcement of the notes and chattel mortgage given as part of the purchase price in consideration of these representations on the ground of fraud, and there is demand for money damages of $5,000 and that the notes and mortgage be canceled.

The complaint makes no offer to return the property received under the lease nor is there any hint of a tender to the seller of what was received, nor is there rescission asked and a demand for the purchase price’s return. The plaintiffs evidently proceeded on the theory that they can keep the property and restrain the enforcement of and cancel the notes and chattel mortgage without any surrender of what was received, or an offer or tender of return. They have not elected to sue for damage alone for fraud in which action they might recoup the loss although holding the benefits.

Rescission and cancellation cannot be had without a proper tender of return of the property received under the agreement sought to be abrogated. The plaintiffs have proceeded in equity when an adequate remedy at law was open under their own complaint and have secured an injunction restraining the enforcement of the notes against them and directing their deposit and that of the chattel mortgage with the clerk of the court without any showing of right to equitable relief in their complaint or affidavits.

[415]*415There is no rule of substance or procedure which permits the relief granted, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied. •

Clarke, P. J., Dowling, Page and Merrell, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied.

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McAvoy, J.:

The'plaintiffs bought of the defendants a lease of premises containing a rooming house and the business therein conducted, and the furniture therein, and claim that it was represented that the house could be used for the purpose of a rooming house and that the furniture therein was the defendant-seller’s property.

They allege that the furniture was not defendants’ property and thereafter was removed, and that they cannot use the house for roomers by reason of a provision of the lease that it may be used solely as a private dwelling.

The action is in equity for an injunction restraining the enforcement of the notes and chattel mortgage given as part of the purchase price in consideration of these representations on the ground of fraud, and there is demand for money damages of $5,000 and that the notes and mortgage be canceled.

The complaint makes no offer to return the property received under the lease nor is there any hint of a tender to the seller of what was received, nor is there rescission asked and a demand for the purchase price’s return. The plaintiffs evidently proceeded on the theory that they can keep the property and restrain the enforcement of and cancel the notes and chattel mortgage without any surrender of what was received, or an offer or tender of return. They have not elected to sue for damage alone for fraud in which action they might recoup the loss although holding the benefits.

Rescission and cancellation cannot be had without a proper tender of return of the property received under the agreement sought to be abrogated. The plaintiffs have proceeded in equity when an adequate remedy at law was open under their own complaint and have secured an injunction restraining the enforcement of the notes against them and directing their deposit and that of the chattel mortgage with the clerk of the court without any showing of right to equitable relief in their complaint or affidavits.

[415]*415There is no rule of substance or procedure which permits the relief granted, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied. •

Clarke, P. J., Dowling, Page and Merrell, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied.

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Bluebook (online)

204 A.D. 413, 198 N.Y.S. 122, 1923 N.Y. App. Div. LEXIS 9483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-freifeld-nyappdiv-1923.

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