184 A.D. 544 | N.Y. App. Div. | 1918
Upon the pleadings and the opening of plaintiff’s counsel the defendant’s attorney made a motion to dismiss the complaint on the ground that the action was for the rescission of the contract on the ground of fraud, and for relief under the original contract which had been superseded by the alleged fraudulent contract, and hence was of equitable cognizance and not within the jurisdiction of the City Court. The facts as set forth in the complaint, briefly stated, are, that the plaintiff’s assignor and the defendant’s assignor entered into an agreement of lease of the premises in the city of New York for a term of ten years at a yearly rental of .$11,000; that thereafter the lessee assigned the lease with the consent of the lessor to the defendant and agreed to accept the defendant as tenant; that subsequently the defendant stated and represented to the plaintiff’s assignor that the business conducted at the said premises then and for a long period of time was running at a loss; that he, the defendant, did not own and was not interested in the said business and was financially irresponsible; that unless the plaintiff’s assignor consented to reduce the rent he would remove from the said premises, would not pay the rent in said agreement stipulated, and that any judgment which the plaintiff’s assignor might recover against him would be uncollectible; that the said statements and representations were made by the defendant herein for the purpose of inducing the plaintiff’s assignor to enter into an agreement in writing with the defendant herein and one Max Katz, by the terms of which agreement the plaintiff’s assignor agreed to accept from the "defendant in full for rent of the said premises during the remainder of
The answer alleges in the separate defense the transaction in relation to the reduction of the rent and the delivery at the time, and as a part of the consideration, of an acknowledgment of indebtedness by one Max Katz to the plaintiff’s assignor to the extent of $6,000." In the opening plaintiff’s counsel stated these facts and also that the agreement of Katz was a guaranty of $2,000 of the rent, and that subsequently the defendant attempted to obtain from the plaintiff’s assignor this guaranty, but the plaintiff’s assignor refused to deliver it up. It is very clear from these statements that the agreement for the reduced rent, $8,000, was not rescinded because in consideration of the making of the agreement the plaintiff had received a guaranty from Katz, and it would be necessary for him to tender that back and notify the defendant that he elected to rescind. (Vail v. Reynolds, 118 N. Y. 297.) There has been no tender made of this guaranty.
Where a person has been induced by fraudulent representations to enter into a contract he may retain what he has received and bring an action at law to recover the damages that he has sustained. (Vail v. Reynolds, supra.)
Although the demand for judgment is for money only, the complaint is not framed on this theory, for such an action is upon an affirmance of the contract, and for the damages caused by the defendant’s fraud, while the complaint herein alleges that he has disaffirmed and rescinded the contract.
Judgment is demanded, not for the difference between the amount of the rent under the original lease and that to be paid under the later contract, which would be the measure of the damage, but judgment is asked for the October rent
The motion for a new trial will, therefore, be denied, with costs.
Clarke, P. J., Dowling, Smith and Shearn, JJ., concurred.
Exceptions overruled and motion for new trial denied, with costs. Order to be settled on notice.