See, e.g., D'Angelo v. Bob Hastings Oldsmobile, Inc., 89 A.D.2d 785, 453 N.Y.S.2d 503, 503 (1982) (stating that "[i]n such an action [rescission], unlike a cause of action in damages on the same ground, proof of ... pecuniary loss is not needed."), aff'd, 59 N.Y.2d 773, 464 N.Y.S.2d 724, 451 N.E.2d 471 (1983); Gross v. State Cooperage Export Crating and Shipping Co., 32 A.D.2d 540, 299 N.Y.S.2d 773, 774-75 (1969) (stating that "it is not necessary for a defrauded party to show that he has suffered pecuniary damages in order to obtain rescission."); Commercial Credit Corp. v. Third & Lafayette Sts. Garage, Inc., 226 A.D. 235, 234 N.Y.S. 463, 468-69 (1929) (stating that "this is not an action to recover damages for deceit, but is brought upon a rescission of the contract to recover the consideration paid ... Under these circumstances, appellant was not bound to show that it had suffered pecuniary loss by reason of defendant's fraud."); see also 60 N.Y. Jur.2d Fraud and Deceit § 165 (stating that "[g]enerally, it is not necessary for a defrauded party to show that he has suffered a pecuniary loss by reason of the fraud in order to obtain rescission of the transaction or contract.").
These cases were brought to recover damages for deceit, where the defrauded party elected to affirm the contract and sue for the loss sustained, and where the measure of damages would be the difference in value of the article sold and what it would be had it been as represented . . . . this is not an action to recover damages for deceit, but is brought upon a rescission of the contract to recover the consideration paid . . . . Under these circumstances, appellant was not bound to show that it had suffered pecuniary loss by reason of defendant's fraud." ( Commercial Credit Corp. v. Third LaFayette Sts. Garage, 226 App. Div. 235, 234 N.Y. Supp. 463, 468.) "It is urged that the complaint does not state a cause of action because (a) it does not allege that plaintiff has suffered pecuniary loss. . . . .
It is sufficient that plaintiff received something different from what she contracted for and that she might not have accepted the same had the facts not been misrepresented to her. Thus, in Commercial Credit Corp. v. Third Lafayette Sts. Garage, Inc. ( 226 A.D. 235) the Appellate Division said (at p. 239): "At the risk of being wearisome, attention must again be called to the fact that this is not an action to recover damages for deceit, but is brought upon a rescission of the contract to recover the consideration paid. The plaintiff asks to be put in the same position it was in before the contract was made.
The substance of the alleged misrepresentations relied upon by the plaintiff were to the effect that for a designated three-year period the earnings of the corporate defendant's predecessor had been a certain amount, whereas in fact they had been far less. Upon plaintiff's theory, particularly with respect to the corporate defendant, he was not required to prove actual damage in the sense of financial loss, but only legal injury. ( Harlow v. LaBrum, 151 N.Y. 278; Downey v. Mallinson, 232 App. Div. 703; Commercial Credit Corp. v. Third Lafayette Sts. Garage, Inc., 226 id. 235; Mack v. Latta, 83 id. 242; 1 Page Cont. § 368; 3 Williston Cont. § 1500; Restatement of Law of Contracts, vol. 2, chap. 15, § 476.) In the main charge the trial justice instructed the jury in conformity with the law laid down in the authorities cited.
This form of action is commonly known as one for deceit in tort, or for fraud and deceit. ( Merry Realty Co. v. Shamokin Hollis R.E. Co., 230 N.Y. 316, 323; Weigel v. Cook, 237 id. 136, 141; Heckscher v. Edenborn, 203 id. 210, 220; Vail v. Reynolds, 118 id. 297, 302; Commercial Credit Corp. v. Third Lafayette Sts. Garage, Inc., 226 App. Div. 235, 236; Wood v. Hill, No. 2, 214 id. 417, 421, 422.) A person defrauded cannot take advantage of all three of these remedies; he must choose the one under which he will proceed.
Equity will administer such relief as is required at the time of judgment, and, in a proper case, will set aside and avoid a transaction which has been induced by means of material misrepresentations or false statements, notwithstanding the fact that such statements were honestly made, and that there was no intent to deceive. ( Bloomquist v. Farson, 222 N.Y. 375, 380; Leary v. Geller, 224 id. 56, 58; Matter of Clark, 233 App. Div. 487; Commercial Credit Corp. v. Third Lafayette Sts. Garage, Inc., 226 id. 235, 238; Canadian Agency, Ltd., v. Assets R. Co., 165 id. 96, 102; Wood v. Dudley, 188 id. 136, 140.) The undisputed evidence shows that the bond and mortgage in suit were dictated by Mr. Van Alstyne in Kitchin's presence, and that Kitchin took both documents away with him, and kept them over night, and that they were delivered to the plaintiffs the following day, properly executed by both Kitchin and his wife.
" ( Bloomquist v. Farson, 222 N.Y. 375, 380.) (See, also, Seneca Wire Mfg. Co. v. Leach Co., 247 id. 1, 7; Comm. C. Corp. v. Third Lafayette Sts. Garage, Inc., 226 App. Div. 235, 238.) We grant a new trial in this case because there may be equities to adjust.