250 A.D. 567 | N.Y. App. Div. | 1937
Lead Opinion
The complaint, which is addressed to the equity side of the court, alleges a cause of action for the rescission of the contract of purchase of a guaranteed mortgage certificate on the ground of misrepresentation.
It may well be that plaintiff can spell out a cause of action at law. However, she has failed to do so. Her pleading shows that, prior to the institution of the action, she made a demand for the purchase price and offered to restore the certificate. She fails to show that she actually tendered the certificate at the time demand was made or attempted to make a tender. In other words, something more is required than a mere offer to restore. (E. T. C. Corp. v. Title Guarantee & Trust Co., 271 N. Y. 124.) There Judge Hubbs said: “ Before respondent could rescind the contract, it should have returned or have attempted to make a return of the certificates.' Its letter of August 28, 1934, was not sufficient for this purpose. It stated ‘we * * * hereby tender back to you certificates * * * and demand that you return to us ’ the sum paid. No attempt was ever made to return the certificates. That gesture was ineffectual.”
Accordingly, so much of the order as denied defendant’s motion to dismiss the complaint for insufficiency should be reversed, with twenty dollars costs and disbursements, and the complaint dismissed, with leave, however, to plaintiff to serve an amended complaint within twenty days upon payment of said costs.
Untermyer and Cohn, JJ., concur; Martin, P. J., and Townley, J., dissent and vote for affirmance.
Dissenting Opinion
The plaintiff seeks a decree in equity rescinding the sale to her of a guaranteed mortgage participation certificate. The ground for rescission is the alleged misrepresentation by the defendant title company. It is alleged that that defendant represented to plaintiff that all of the lands described in the mortgage were owned by the mortgagor therein named, and that the mortgage was a good and unincumbered first lien upon all of
It is then alleged:
“ Eleventh. That upon learning that the said representations aforesaid were untrue and false, the plaintiff demanded of the said defendant Title Guarantee & Trust Company that the sale of said guaranteed mortgage certificate to her be rescinded and that said defendant return to the plaintiff the purchase price of said certificate, to wit: Five thousand ($5,000) Dollars, with interest at the legal rate of 6% per annum from the date of the sale, but the said defendant refused and still refuses to rescind said sale or to return the purchase price or any part thereof to the plaintiff. At the time of making said demand upon the said defendant this plaintiff offered to return and now offers to return to said defendant the aforementioned and described guaranteed first mortgage certificate, together with all interest which has been paid thereon by the said defendant to this plaintiff.”
The appellant contends that the plaintiff has an adequate remedy at law, and it is said that the complaint is similar to the complaint in Voehl v. Title Guarantee & Trust Co. (155 Misc. 697; affd., 242 App. Div. 762; affd., 266 N. Y. 662). It will be noted, however, that in the Voehl case the complaint alleged: “plaintiffs elect to and do hereby rescind and disaffirm the purchase of said certificate and the renewal and extension thereof and are willing and hereby offer to return to the defendant said certificate and the renewal and extension thereof.” There is no allegation in the present complaint that plaintiff has .elected to rescind. It is true that the plaintiff here alleges that she requested the appellant to rescind and offered to return the certificate and all interest received by her. Had plaintiff rescinded, her remedy would be an action at law. She has not rescinded, but asks for a decree adjudging the appellant guilty of misrepresentation on which rescission may be based.
The following quotation from Bruner & McCoach v. Miller (59 W. Va. 36; 52 S. E. 995) is applicable to the situation here presented;
In order for plaintiff to succeed, it will be necessary for her to establish lack of title in the mortgagor to “ substantial and valuable portions ” of lands purported to be covered by the mortgage. Proof of such facts is not alone essential, but establishes a cause of action in equity. Such failure of title will affect all certificate holders .alike. A representative action is, therefore, appropriate.
The order appealed from should be affirmed.
Townley, J., concurs.
So much of the order as denied defendant’s motion to dismiss the complaint for insufficiency reversed, with twenty dollars costs and disbursements, and the complaint dismissed, with leave, however, to the plaintiff to serve an amended complaint within twenty days from service of order, upon payment of said costs.