Downey v. Mallinson

232 A.D. 703 | N.Y. App. Div. | 1931

Order granting defendants’ motion to dismiss the complaint on the ground that it is insufficient in law and the judgment entered thereon reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The action being one for rescission, it is not needful to allege injury or damage. (1 Page Cont. §§ 368 and 335; Harlow v. La Brum, 151 N. Y. 278; Stewart v. Lester, 49 Hun, 58.) The same elements are not needful in an action for rescission on the ground of false material representations as are necessary in an action for deceit. (Bloomquist v. Farson, 222 N. Y. 375, 380; Leary v. Getter, 224 id. 56; 3 Williston Cont. § 1500.) Whether the allegations with reference to value concern mere opinion or concern material facts must be determined upon the trial. As a matter of pleading the complaint is sufficient in this respect. (Simar v. Canaday, 53 N. Y. 298; People ex rel. Gellis v. Sheriff of Westchester, 225 App. Div. 156; affd., 251 N. Y. 33.) The allegations of the complaint do not disclose as a matter of law that the plaintiffs have been guilty of laches. That is a question that must be disposed of on the trial when all the facts that bear upon it are developed. Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ., concur.