Opinion
June 11, 1937.
Present — Lazansky, P.J., Carswell, Adel, Taylor and Close, JJ.
Action for money had and received on the executed rescission of a transaction involving the purchase of a guaranteed mortgage certificate, where that certificate described the property covered by the mortgage involved as owned by a specific mortgagor, which property was not in fact entirely owned by that mortgagor. Judgment for the plaintiff, as amended, unanimously affirmed, with costs. There was implicit in the transaction a representation that the certificate that was to be delivered in connection with the receipt for money received from the plaintiff would evidence a participation in the mortgage covering property described therein and wholly owned by the mortgagor. That representation was incorrect and it was immaterial whether it was innocently made or not. The representation being untrue, upon discovery thereof the right to rescission arose in plaintiff.