Opinion
October 8, 1909.
Frederick L. Taylor [ George B. Hayes with him on the brief], for the appellant.
Andrew F. Van Thun, Jr., for the respondent.
This is a suit for the rescission of a purchase of real estate by the plaintiff of the defendant for fraud. Payment was made by the conveyance of other real estate by the plaintiff to the defendant and paying the balance in cash. The plaintiff offers in the complaint to reconvey, and restore the defendant to her original position. The learned trial Judge dismissed the case because no notice of rescission and offer to restore were given to the defendant by the plaintiff before the suit was brought. This was error. The rescission has to be made in advance of an action to recover back money paid on a fraudulent contract of purchase, but not to bring a suit for a rescission. Such a suit is not based on a previous rescission; it is for a rescission, and it suffices that the complaint itself is a rescission by necessary offers to tender, to restore, etc. ( Vail v. Reynolds, 118 N.Y. 297; Berry v. A.C. Ins. Co., 132 id. 49). The distinction between an action based on a rescission and one for a rescission seems to be obscured or lost sight of by the language of some opinions.
The judgment should be reversed.
HIRSCHBERG, P.J., JENKS, BURR and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.