| N.Y. App. Div. | Nov 15, 1927
-Judgment and order affirmed, with costs. All concur, except Crouch and-Taylor, JJ., who dissent and vote for reversal upon the following grounds: 1. That by bringing this action for specific performance as well as an action at law to recover salary, plaintiffs, with full knowledge of all the facts, proceeded in affirmance of the contract and should be held to the remedy thus elected. There having been no change in the situation between the commencement of the action and the time when the motion to amend was made, the motion should have been denied. In Russell H. & I. M. Co. v. Utica D. F. & T. Co. (195 N.Y. 54" date_filed="1909-03-16" court="NY" case_name="Russell Hardware & Implement Manufacturing Co. v. Utica Drop Forge & Tool Co.">195 N. Y. 54), an action for specific performance, a judgment rescinding the contract was granted under the prayer for general relief. The distinction between that case and this, however, was clearly pointed out. “ There would be,” said the court (p. 59), “ some force in the argument that the plaintiff should be held to the remedy, which he had elected to pursue, if, upon reaching the trial of the issues, the situation had not been changed by the conduct of the defendant, from what it was when the complaint was framed and served.” The remedy by way of rescission was granted only to meet a new situation created by the conduct of the defendant after action brought. That is not so here. 2. That no ground for rescission was pleaded or proven. While fraud in equity is a flexible term, it seems difficult to apply it to the acts of this defendant. The parties entered into an agreement which is claimed to have been breached. Because of the nature of its subject-matter equity might decree specific performance. But to us there appear to be no facts which, under equitable principles, require the destruction of the contract by way of remedy. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.