Opinion
June 18, 1937.
Present — Lazansky, P.J., Hagarty, Carswell, Davis and Johnston, JJ.
The action is to recover the purchase price of a guaranteed first mortgage certificate after plaintiff rescinded the contract of purchase. Plaintiff alleges that she agreed to purchase a participation in a mortgage covering the premises No. 415 East Twelfth street, Manhattan. While the certificate issued to plaintiff purports to be a participation in such a mortgage, defendant admits it never owned a mortgage covering premises No. 415 East Twelfth street, although it did own one covering premises No. 413 East Twelfth street. Defendant contends plaintiff's husband never asked that his money be invested in a mortgage covering premises No. 415 but requested that it be invested in any mortgage owned by defendant, and defendant asks that the certificate be reformed to describe correctly the bond and mortgage in which plaintiff owns a share. Judgment was entered on a verdict for plaintiff; and on a stipulation that the court dispose of defendant's counterclaim at the close of the trial on the same evidence, the court dismissed the counterclaim. The only question raised is that the verdict is against the weight of the evidence. Judgment unanimously affirmed, with costs.