Opinion
March 31, 1952.
In an action to rescind a contract for the purchase of real property, and incidental relief, defendants appeal from an order denying their motion to dismiss the complaint for insufficiency. Order reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. The complaint alleges that, subsequent to the making of the contract, for the first time plaintiffs learned that the building improvement on the said premises had, during defendants' ownership, been subjected to serious and recurring flooding of the portions of the basement and garage below grade level; that said floods occurred during heavy rainfalls, which caused the accumulation of water in the public street on which the premises abut and the overflowing of same on and into the said premises due to the fact that the premises were not serviced or equipped with adequate drainage and sewage facilities; that said condition was due to the lack of adequate sewerage and drainage facilities for the premises and for its immediate neighborhood; that the defendants had knowledge of this condition and failed to divulge it to plaintiffs, and that by reason of such concealment plaintiffs were caused to enter into the contract. The complaint does not allege that plaintiffs made any inquiry prior to the making of the contract as to the condition complained of; that there was any confidential or fiduciary relation between the parties; nor does it allege that defendants made any representation as to the condition of the premises, or any statement from which such a representation could reasonably have been inferred. Neither does it allege any conduct on the part of the defendants designed to mislead the plaintiffs or to throw them off their guard and thus cause them to omit inquiry or examination which they otherwise would have made. In our opinion the complaint is insufficient. ( Amend v. Hurley, 293 N.Y. 587; Dambmann v. Schulting, 75 N.Y. 55.) Plaintiffs may plead over, if so advised, within ten days from the date of the entry of the order hereon. Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.