4 A.D.2d 787 | N.Y. App. Div. | 1957
Appeal from a judgment, entered after trial before an Official Referee, in favor of respondent. The action is by the purchaser at an auction sale of certain real property in Westchester County to rescind the contract of purchase and sale and to recover damages, by reason of certain alleged fraudulent representations. The seller, Union Industries, Incorporated, interposed counterclaims to compel specific performance and to recover damages. The broker-auctioneer, Fred Berger Co., Inc., interposed a counterclaim for its commission. Judgment insofar as it is in favor of respondent against appellant Union Industries, Incorporated, reversed on the law and the facts, with costs to said appellant, and complaint dismissed, with costs, action severed and remitted to the Special Term for the purpose of determining the damages, if any, sustained by said appellant by reason of respondent’s wrongful attempted rescission of the contract, and, upon such determination, judgment is directed to be entered in favor of said appellant upon its counterclaims directing respondent to specifically perform the contract and to pay said appellant the amount of its damages, if any, as so determined. The findings with respect to fraud on the part of the appellants and with respect to respondent’s reliance on the claimed statements or representations, are reversed and new findings are made to the effect that such statements or representations were not made fraudulently or with the intent to deceive, that respondent did not rely upon them and that respondent was not misled or deceived by them. Judgment, insofar as it is in favor of respondent against appellant Fred Berger Co., Inc., unanimously affirmed, without costs. In our opinion the evidence supports neither the finding that the claimed statements or representations were fraudulent, nor the finding that the respondent relied on them to his detriment. Respondent, an attorney, is also a successful businessman, with considerable experience in business matters. Prior to the auction sale he inspected the premises and sent for and read the brochure published by the auctioneer describing the premises. Respondent claims to have been deceived by statements in the brochure and by statements made to him by the president of the appellant seller, to the effect that the plumbing and sewerage systems on the premises were in good working order and to the effect that the City of New Rochelle was then constructing a city sewerage system which would increase the value of the property when the system was completed. The first alleged representation was not false. There is no evidence that the plumbing and sewerage systems were not in good working order when the representation was made. The second representation, however, was technically incorrect. The fact was that the County of Westchester had created a sanitary sewer district which included part of the city of New Rochelle and that the city had provided for an agreement with the county to convey an easement for the construction of a sewer in the vicinity of the premises involved in this action. Preliminary surveys for the construction of the sewer had been made and the city contemplated arrangements for the construction of a lateral sewer in the area to connect with the county sewer. No city sewer, however, was in the process of construction. While the brochure stated that the city sewer was in the course of construction, it also stated that the information contained therein had been obtained from sources deemed reliable and that no responsibility was assumed by the owner or auctioneer with respect to any statement. The brochure specifically cautioned prospective purchasers to check carefully, before the sale, the verity