Antonelli v. Antonelli, 245 A.D. 722

Antonelli v. Antonelli

245 A.D. 722 | N.Y. App. Div. | 1935

Action by plaintiffs in rescission of a transaction that involved the delivery of a bond and mortgage for $5,000, and a deed as additional security therefor, to defendants Kathreen and Amedeo Antonelli upon the promise that defendant Sarcona, the father of Kathreen Antonelli, would deliver to her and her husband, Amedeo, $15,000 in cash or property. Judgment for the defendants reversed on the law and the facts, with costs, and judgment directed *723for the plaintiffs for the relief demanded in the complaint, with costs. The complaint may be deemed amended to conform to the proof. The action may be treated as one in rescission on the theory of a failure of consideration or on the theory that the delivery of the instruments was the result of misrepresentations as to what Sarcona would do in the event the instruments were delivered (Bloomquist v. Farson, 222 N. Y. 375), which representations were never complied with by defendant Sarcona. The evidence clearly sustained the plaintiffs’ contentions and no legal obstacle exists to undoing the wrong done to these plaintiffs as a consequence of defendant Sarcona’s failing to do that which he represented he would do in the event the plaintiffs delivered the instruments in question. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings should be made in accordance herewith. Lazansky, P. J., Young, Carswell, Tompkins and Johnston, JJ., concur. Settle order on notice.