Opinion
March 13, 1962
Appeal by defendant from a judgment of the Supreme Court in favor of plaintiffs rendered after a trial by the court without a jury. On May 24, 1957 plaintiffs entered into an agreement with defendant to purchase a parcel of real property upon which he was in the process of erecting a dwelling house. The complaint alleged a complex of causes of action and prayed for the rescission of the agreement and damages. Upon the trial all causes of action were dismissed by the court except those for fraud and deceit and for the breach of a contract by defendant to lawn the entire yard about the house. These causes of action were found to have been established and plaintiffs damaged in the respective amounts of $1,100 and $100. Judgment accordingly was granted in the total sum. While appellant formally has appealed from the whole of the judgment, he does not contend here that the part thereof which resulted from the trial of the action on contract should be disturbed. The fraud which plaintiffs claim induced them to agree to purchase the property with its improvement in an unfinished state was based upon false statements and representations allegedly made by defendant, on which they relied, that the cellar of the house when completed would be dry, a result which, as an experienced builder, defendant allegedly knew would not obtain. Assuming, without holding, that the necessary elements of a cause of action for fraud and deceit were established, the damages to be recovered were the difference between the amount paid and the value received. ( Reno v. Bull, 226 N.Y. 546, 553, motion for reargument denied 227 N.Y. 591; Terris v. Cummiskey, 11 A.D.2d 259, 262.) The proof of damages offered was the estimated cost of repairing the condition. The application of the improper measure of damages was error of sufficient moment to require a new trial of the cause of action for fraud and deceit. ( Nelvan Constr. Corp. v. Sanka Realty Corp., 227 App. Div. 51, 52.) Judgment modified by affirming that part thereof which allows $100 to plaintiffs; and otherwise reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.