Majority
p. 933Irving Galusha, Appellant, v. Elizabeth K. Hughes, Individually and as Executrix, etc., and Another, Respondents.
Judgment reversed and new trial granted, with costs to the appellant to abide event. Held, that the bringing of the action and the other circumstances are sufficient to establish a repudiation by the plaintiff of the contract on the ground of fraud. (Gould, v. Cayuga County Nat. Bank, 86 N. Y. 75 ; Davis v. Rosenzweig Realty Co., 192 id. 128 ; Cox v. Stillman, 133 App. Div. 433 .) All concurred, except Lambert, J., who dissented upon the ground that there is a failure of proof to establish fraud as a basis of rescission.
Cases cited
- Gould v. Cayuga County National Bank 86 N. Y. 75 p. 933