85 N.Y.S. 913 | N.Y. App. Div. | 1903
The plaintiff in Keefuss v. Weilmunster (the second action being incidental, and tried in connection with the first) brings an equitable action to have a deed heretofore executed by her to the defendant Annie Weilmunster declared null and void on the ground of fraud The learned court at Special Term found the facts in substantial accord with the allegations of the plaintiff’s complaint, but refused to grant the relief prayed for upon the ground that the plaintiff, having retained the property which had been delivered into her possession by the defendants, in consideration of the transfer of the real estate, for a long time after discovery of the fraud, had forfeited her right to an equitable rescission of the contract. The plaintiff appeals from the judgment.
An examination of the case, in the light of authorities which are controlling here, convinces us that the learned court at Special Term has erred in making this disposition of the case. The action is not an action at law, but is one invoking equitable jurisdiction and equity in a proper case is never impotent. The learned court finds that the plaintiff, on the 12th day of March, 1901, was the owner of the land, buildings, etc., at Southfield, borough of Richmond and city of New York, known as 70 New York avenue, as well as certain other premises involved in the other action; that at the same time the defendant Charles Weilmunster, husband of the other defendant, was the owner of a certain hotel and liquor saloon, known as No. 195 West street, in the borough of Manhattan, together with the stock of liquors, cigars, etc., then upon the premises, as well as a certain liquor tax certificate, a lease of the premises for five years, etc., subject to a certain chattel mortgage; that on the date above mentioned both of the above-named defendants, with intent to deceive and defraud the plaintiff, and to obtain a conveyance of the property of the plaintiff above described, and to induce the
Under this state of facts there can be no doubt of the plaintiff’s right to equitable' relief. She acted promptly on discovering the fraud; she offered to reconvéy all of the tangible property and to account for ,all moneys which came to her in the conduct of the business, and on the defendants refusing to reconvey the property to her she commenced this action, not delaying a single day. In her complaint she sets forth the above facts, with others, in detail, and brings the property into court and leaves it subject to the final
The second action relates to a mortgage given in connection with the main transaction, and as new trials will be necessary, there appears no reason for discussing the questions presented further. The entire transaction appears to be vitiated by fraud, and we have no doubt that, within the rules above suggested, the plaintiff was entitled to the relief prayed for, and that there is power in the court to place the parties substantially upon the grounds which they occupied before the transaction out of which this controversy grows.
The judgments appealed from should be reversed and new trials granted, costs to abide the final award of costs.
Goodrich, P. J., Bartlett, Hirschberg and Jerks, JJ., concurred.
Judgments reversed and new trials granted, costs to abide the final award of costs.