
    Carroll G. Walter, Respondent, v. Garland Automobile Company, Appellant.
    First Department,
    November 6, 1914.
    Contract —jurisdiction of equity to rescind executed contractffor purchase of personal property—false warranties and representations — remedy at law.
    A complaint in a suit in equity to rescind a contract for the purchase of personal property and to recover back the purchase price, upon the ground of false warranties and representations on the part of the defendant, and seeking as incidental relief to enjoin the prosecution of an action by the defendant to recover the cost of repairs made upon the property after the purchase, does not state a cause of action in equity. It seems, however, that such a complaint contains all the necessary allegations for an action at law to recover the price paid.
    Appeal by the defendant, Garland Automobile Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1914, denying defendant’s motion for judgment on the pleadings.
    
      William R. Adams, for the appellant.
    
      Russell H. Robbins, for the respondent.
   Scott, J.:

This is an action in equity to rescind a contract of purchase of an automobile from defendant to plaintiff, and to recover back the purchase price. . The ground upon which rescission is sought is fraud and misrepresentation by defendant as to the quality and value of the subject of the purchase. As incidental relief (and this is probably the real reason for the action) plaintiff seeks to enjoin the prosecution of an action commenced in the Municipal Court by the defendant to recover the cost of repairs made upon said automobile after the purchase. Some of the representations claimed to be false are designated in the complaint as warranties, and doubtless may be so considered.

We are of opinion that the complaint fails to state a cause of action in equity. The agreement sought to be rescinded was fully executed when the sale of the automobile was completed. As was said very recently by the Court of Appeals: ££ Equity will not entertain an action to declare the rescission of an executed transaction unless a decree announcing the rescission is essential to the suitor’s protection. "" * It [the necessity for a decree announcing rescission] may arise, under a great variety of other conditions, where the transaction in one or more of its elements is still executory. * * * If, however, nothing executory remains, an action to declare a rescission, even though fraud is proved, does not lie as of course. £ It is not in every case of fraud that relief is to be administered in a court of equity, and it is a well-settled rule that wherever a matter respects only a sale of personal chattels, and lies merely in damages, the remedy is at law only. If this had been a sale of a horse to the plaintiff procured by fraud, it would not have been proper for her to resort to an equitable action for relief, because an action at law would furnish her an ample remedy, and give her all the relief to which she could, under any circumstances, be entitled.’ [Bosley v. Nat. Machine Co., 123 N. Y. 550, 555; Buzard v. Houston, 119 U. S. 341, 352.] In the case at hand, the transactions have been fully executed. The plaintiffs are simply seeking to get back a sum of money paid under a contract, not affecting real estate, which they have elected to declare a nullity. To render that relief effective, it is not required that a court of equity should anathematize the closed transactions. The cause of action is at law and the legal remedy is adequate.” (Schank v. Schuchman, 212 N. Y. 352.)

The rule above quoted -is precisely applicable to the case at bar. The transaction is completed; the plaintiff has elected to declare it a nullity because of false warranties and representations on the part of defendant, and he seeks to recover the purchase price. His remedy at law is complete and adequate, and there is nothing for equity to seize hold upon. As an action to restrain the prosecution of the action in the Municipal Court, the complaint is clearly inadequate. Whatever defense plaintiff may have to that action can he presented in that court. But while the complaint does not state a cause of action in equity, which is evidently what the pleader intended, we cannot see that it does not contain all the necessary allegations for an action at law to recover the price paid. It may be that difficulties will be found in maintaining such an action, but these are matters of defense not apparent on the face of the complaint, and are not available upon a motion like the present.

It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  