Green v. Krongold

232 A.D. 840 | N.Y. App. Div. | 1931

Judgment reversed upon the law and the facts, with costs, and judgment of foreclosure directed in favor of plaintiff as prayed for in the complaint, with costs. We are of opinion that the findings of misrepresentation on the part of the plaintiff are not supported by the evidence. The defendant received a deed for the property which he contracted to buy but claims that plaintiff represented that it adjoined property upon which dog kennels were built. Defendant, coneededly, knew the distance from Barnwell street to his property and knew the width of his property. It was but a matter of calculation to determine that from forty-six to forty-seven feet intervened between his property and the dog kennels. In any event, the representation, if made, was immaterial, for the reason that there was no proof that there was any difference in the value of the land purchased by defendant and the land adjoining the kennels. This conclusion is not changed by the claimed representation that plaintiff stated that the owners of the kennels would undoubtedly require the property within a short time and would purchase it from the defendant at an advanced price. This was but a matter of opinion and not of substance. Plaintiff is not precluded by reason of his failure to file exceptions. If exceptions be necessary, they are allowed by this court. (Termini v. Huth, 191 App. Div. 218; Matter of Simmons, 213 id. 32; Wilmarth v. Heine, 137 id. 526; People ex rel. De Laney v. Mt. St. Joseph’s Academy, 198 id. 280; affd., 234 N. Y. 565; Matter of Findlay, 253 id. 1, 15.) Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made. Young, Hagarty, Carswell, Scudder and Tompkins, JJ., concur. Settle order on notice.