254 A.D. 704 | N.Y. App. Div. | 1938
Based on defendant’s fraudulent misrepresentations, plaintiff brings this action in equity for rescission of the purchase of a mortgage certificate and to recover the purchase price, plus interest, less the amount of the interest payments theretofore received. Order denying defendant’s motion under rule 106, Rules of Civil Practice, to dismiss the complaint for insufficiency, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to plaintiff’s commencing an action at law if so advised. Under the facts pleaded, plaintiff has no need for equitable relief. (Voehl v. Title Guarantee & Trust Company, 266 N. Y. 662; Seneca Wire & Mfg. Co, v. Leach & Co., 247 id. 1; Falk v. Hoffman, 233 id. 199; Fetzer v. Title Guarantee & Trust Co., 250 App. Div. 567; Brenner v. Title Guarantee & Trust Company, 248 id. 682.) She may rescind the purchase, return .or tender the return of the certificate anti sue at law to recover the purchase price. Rector of Church of St. Matthew & St. Timothy v. Title Guarantee & Trust Company (272 N. Y. 568), relied upon by plaintiff, is not applicable. While her complaint is patterned after the complaint in the case cited, the sufficiency of the complaint in that case was neither questioned nor considered. Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ., concur.