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Fetterman v. Title Guarantee and Trust Company

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1938
254 App. Div. 704 (N.Y. App. Div. 1938)

Opinion

April 22, 1938.


Based on defendant's fraudulent misrepresentations, plaintiff brings this action in equity for rescission of the purchase of a mortgage certificate and to recover the purchase price, plus interest, less the amount of the interest payments theretofore received. Order denying defendant's motion under rule 106, Rules of Civil Practice, to dismiss the complaint for insufficiency, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to plaintiff's commencing an action at law if so advised. Under the facts pleaded, plaintiff has no need for equitable relief. ( Voehl v. Title Guarantee Trust Company, 266 N.Y. 662; Seneca Wire Mfg. Co. v. Leach Co., 247 id. 1; Falk v. Hoffman, 233 id. 199; Fetzer v. Title Guarantee Trust Co., 250 App. Div. 567; Brenner v. Title Guarantee Trust Company, 248 id. 682.) She may rescind the purchase, return or tender the return of the certificate and sue at law to recover the purchase price. Rector of Church of St. Matthew St. Timothy v. Title Guarantee Trust Company ( 272 N.Y. 568), relied upon by plaintiff, is not applicable. While her complaint is patterned after the complaint in the case cited, the sufficiency of the complaint in that case was neither questioned nor considered. Lazansky, P.J., Hagarty, Davis, Johnston and Taylor, JJ., concur.


Summaries of

Fetterman v. Title Guarantee and Trust Company

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1938
254 App. Div. 704 (N.Y. App. Div. 1938)
Case details for

Fetterman v. Title Guarantee and Trust Company

Case Details

Full title:VITA FETTERMAN, Respondent, v. TITLE GUARANTEE AND TRUST COMPANY, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 22, 1938

Citations

254 App. Div. 704 (N.Y. App. Div. 1938)

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