Summary
In Cowart v. Lang (252 App. Div. 720 [4th Dept 1937]), a finance charge was held to be "consideration for the privilege of deferring payment of the purchase price and thus * * * an accommodation or benefit to the plaintiff and not a proper element of damage."
Summary of this case from Alpert v. Shea Gould ClimenkoOpinion
September 29, 1937.
Present — Sears, P.J., Crosby, Lewis, Cunningham and Taylor, JJ.
Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event. Memorandum: We cannot say from the trial court's charge that in reaching its verdict the jury may not have included in its award to plaintiff the "finance charge" which was the consideration for the privilege of deferring payment of the purchase price and thus was an accommodation or benefit to the plaintiff and not a proper element of damage. If fraud is proved the rule by which the amount of damage is to be fixed is indemnity for actual pecuniary loss resulting directly from the wrongful act. ( Ochs v. Woods, 221 N.Y. 335, 340, 341; Hotaling v. Leach Co., 247 id. 84, 87, 88.) Such damages are established by proving the difference between "the value of that with which plaintiff parted and what was the value of that which he received." ( Ochs v. Woods, supra, 341.) All concur. (The judgment is for plaintiff in an action to recover damages for fraud and misrepresentation in the sale of an automobile.)