Opinion
November 15, 1985
Appeal from the Monroe County Court, Cornelius, J.
Present — Callahan, J.P., Denman, Boomer, Green and Pine, JJ.
Order unanimously reversed, on the law, with costs, and judgment of Webster Town Court reinstated. Memorandum: Town Court's judgment for plaintiff on his small claim did substantial justice according to the rules of substantive law (UJCA 1804) and County Court departed from those principles in reversing the judgment and dismissing the complaint (UJCA 1807). In paying the mortgage points at closing, in demanding reimbursement from defendant, and in subsequently instituting an action against defendant for the damages incurred by plaintiff as a result of defendant's acts of fraudulent inducement, plaintiff made clear his election to affirm the contract and proceed on a fraud theory. Consequently, County Court erred in holding plaintiff to be precluded by the parol evidence rule and the Statute of Frauds from establishing his reliance upon the defendant's fraudulent representations that the seller would pay the mortgage points (see, Wittenberg v Robinov, 9 N.Y.2d 261, 264; Channel Master Corp. v Aluminium Ltd. Sales, 4 N.Y.2d 403, 408; Bennett v Burch-Buell Motor Corp., 221 App. Div. 517).