
    Louis Caplan, Appellant, v. Hyman Moness, Respondent.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Rescission of contract — Notice of election.
    Where one lias agreed to purchase real estate upon the vendor’s representation that the rentals amount to a certain sum and at the time set for passing the title it appears that the rentals áre substantially less than represented and the vendee thereupon refuses to take the property for that reason, his acts and conduct are a sufficient disaffirmance of the contract without any writing or ceremonious denunciation of the transaction.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant, and from an order denying a motion for a new trial.
    
      Herman S. Fried, for appellant. "
    Goldfogle, Cohn & Lind, for respondent.
   MacLean, J.

There was sufficient testimony for the consideration of the jury that, on March 27, 1905, the plaintiff’s assignor, one Tillinghast, a machinist, came from his home in a remote rural county of Pennsylvania, saw an acquaintance, one Jacobs, whom he regarded as his friend, but who turned out to be one of a pair of brokers, employed by the defendant at three times the usual compensation, to sell certain property in East One Hundred and Thirteenth street, visited the premises and then with the other broker, one Levy, went to the office of the defendant, who ■ told his price, $21,500, and stated that the rentals were $213 a month — $2,556 a year — exclusive of the basement occupied by the j anitor without rent, but valued at $10 a month; that Tillinghast, relying on the statement of the rentals and upon Jacobs, agreed to take the property at Moness’ price, signed the contract to purchase, paid thereon $500, and largely left the arrangement of details to Jacobs, and the examination of the title to a lawyer; that he did not visit the property again because Moness said it would not be advisable to go and see the tenants as they might, on account of the property changing hands, get scared and think the rent was going to be raised, and leave; that, on May eighteenth, the day set for passing the title, Mr. Tillinghast came again and that then, on the apportionment of rents, it came out from the statements of defendant' and of Levy that the rentals were less than represented by more than $300; that the defendant, on being asked by Tilling-hast how it came that the rentals were not as represented, said: “ That is all right, the rental is all right, the property is all right; it is a good property, and you can raise the rent, the rentals can be raised,” and went on talking pretty fast, and that Jacobs said, in the presence of Tillinghast and Moness: “Here, this rental is two or three hundred dollars or three or four hundred dollars less than represented in our first meeting, and I will not let the deal go through,” and thereafter Tillinghast, who, as he said, took a back seat and left the details to Jacobs and the lawyer, did not go on with the transaction, but assigned to the plaintiff his claim for the return of the earnest money, cost of examination of title, with incidentals, payments which he was induced to make by the representations made by the defendant with the intent to deceive and defraud him, upon the false and fraudulent misrepresentation ¡of the rental income of the property upon which the plaintiff had relied. On the resting of the plaintiff, the learned trial justice dismissed the complaint, on motion of the defendant’s counsel, on the ground that there had been no rescission of the contract proven and no proof of its rescission offered. To sustain his non-suit, the respondent’s counsel cites two cases (Gould v. Cayuga Nat. Bank, 86 N. Y. 75; Rothstein v. Isaac, 124 App. Div. 133), cases perhaps selected for an appeal in another cause, perhaps furnished inadvertently by the brief-malcer in a busy office. From the long opinion written in the first by an effusive opinion writer is taken a didactic sentence, uncalled for by the case as stated by the opposing lawyers, G. F. Comstock and W. F. Cogswell, supposedly competently aware of their controversy, but containing a doctrine said, in the sentence quoted by counsel here, to have been held in Stevens v. Hyde (back in Barbour and before the War), wherein was written in an opinion of a dozen pages with citations of and from six to forty cases and three text-books: These expressions are well enough and are true, rightly understood, but they are obviously not unqualifiedly true. They embrace as much truth as can be compressed into so few words, but they show the insufficiency of human language to express in short aphorisms all of truth,” with, at the very end, as the conclusion of the whole matter then before the Monroe General Term: “ When therefore the plaintiffs refused on the trial to make full restitution of all they had received towards the purchase of the goods, I can see no other course that could have been taken at the circuit except for the court to order a non-suit.” To this the plaintiff here cannot cavil. The disappointed Tillinghast had received nothing and was only out of his money. His simple disaffirmance of his bargain by words and conduct was sufficient, without any writing and without any ceremonious denunciation of the transaction which, as shown upon the trial prima facie, was a bad bargain. In the opinion in the other case, long also, and as recent as last year, “ somewhat similar to the case at bar,” it was not “ clearly held that before an action for damages because of fraud could be maintained the contract must first be rescinded.” On the contrary, nothing was said about rescission, but the judgment on the verdict of the jury, awarding the return of the money paid upon false representations as to the rentals, was set aside only because the misrepresentations respecting the rental were not made by the seller, but by his zealous father, assuming to act as agent and broker, and because it was considered entirely misleading to say to the jury that they could find the fraud which was essential to a disaffirmance of this contract from a purely unintentional error made by an agent under such circumstances.” The judgment should be reversed.

Gildersleeve, J., concurs. Seabury, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  