Alexander v. Vidootzky

49 Misc. 471 | N.Y. App. Term. | 1906

Dissenting Opinion

Giegerich, J. (dissenting).

I cannot concur in the view that the agreement to take and pay for the policy of title insurance is not a part of the entire contract. Shenk, the owner of the property, had applied for such insurance and had made it a condition of the sale that the defendant should take that policy off his hands and pay thérefor the amount specified in the contract. The check for that amount was given, not to Shenk, but to the plaintiff who was not a party to the contract. Had the action been brought by Shenk and had the defendant counterclaimed for damages for fraud, instead of pleading as he did that he had received no consideration for the check and asking that the complaint be dismissed, then the proof might have been admissible. Such counterclaim for damages would have been consistent, being based on the theory of affirming the contract while claiming damages for the fraud in inducing it.

Even if this judgment is affirmed, the defendant is not without remedy. He can .still recover from Shenk, the man he dealt with, the damages suffered through Shenk’s fraud.

The judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Lead Opinion

Scott, J.

I do not consider that defendant’s agreement to pay for the policy of title insurance constituted the amount thus to he paid part of the consideration for the property. Although incorporated in the contract of sale, it was a separate and independent agreement. Although the action is upon the check, the defendant had the right to call in question the consideration upon which the check was given; and, although the agreement to pay $260 as written in the contract was absolute, the defendant should, I think, have been permitted to show that he was led to make a promise thus absolute in form in consequence of a false representation as to what the cost would be. The defendant’s position is that he agreed to take a policy of insurance already ordered by plaintiff; that he agreed to pay the Title Company’s charge; that plaintiff stated that was $260; that, in reliance upon that statement, he made the agreement, absolute in form, to pay $260, and that, in fulfillment of that agreement, he gave the check sued upon. He says, further, that the Title Company’s charge was less than $260 and that plaintiff knowingly misstated the fact. I think that defendant should have been permitted, if he could, to prove the fraud. This would not have involved any question of the assumption of equitable jurisdiction by the Municipal Court. Milella v. Simpson, 47 Misc. Rep. 690.

The judgment should, be reversed and a new trial granted, with costs to appellant to abide the event.

Gbeekbaum, J., concurs.