228 A.D. 449 | N.Y. App. Div. | 1930
The defenses herein are sufficient as a completed rescission of a voidable contract, recognized as being voidable by both parties thereto at the time the acts which constituted such completed rescission were indulged in by the defendant and the beneficiary, the plaintiff’s assignor herein. Of course if the plaintiff’s assignor, the beneficiary herein, was overreached by the defendant in connection with this completed rescission of the voidable contract, the defense, sufficient on its face, will fall under proof of such fraud or deceit. On this motion the facts alleged in each defense must be accepted as true and free from any vitiating elements of fraud or deceit. The same result would ensue if the facts set out in each defense were viewed upon the theory of accord and satisfaction. The facts sufficiently indicate a repudiation by the insurance company of the policy in an attempted rescission and show that the beneficiary received notice of the repudiation and the rescission, and,
The order should be affirmed, with ten dollars costs and disbursements.
Lazansky, P. J., Yotjng, Hagarty, Carswell and Scudder, JJ., concur.
Order denying plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Practice, or for other relief under rules 103 and 109, affirmed, with ten dollars costs and disbursements.