Opinion
June 6, 1955.
In an action by a vendee of a dwelling house to recover damages for fraud and breach of the contract of sale, defendants appeal from so much of an order as denies in part their motion to modify plaintiff's notice of examination of defendants before trial. Order modified by striking out of item 11, which item is set forth in the second ordering paragraph thereof, the words "as an entirely new building and". As so modified, order, insofar as appealed from, affirmed, without costs. Item 11 relates to the matter of damages for the fraud alleged in the first cause of action, that is, fraudulent representation that the house was being built of entirely new materials, and concealment of the fact that part of the building was a pre-existing structure. The applicable rule of damages is the difference between the contract price and the market value of the property at the time of the sale. ( Reno v. Bull, 226 N.Y. 546, 553; Nelvan Constr. Corp. v. Sanka Realty Corp., 227 App. Div. 51.) Under the circumstances it is not necessary and material in the prosecution of plaintiff's case to inquire into what the value of the premises would have been had the house been an entirely new structure. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.