Schelling v. Bischoff — 13 N.Y.S. 600

Majority

p. 600

Schelling v. Bischoff et al.

(Superior Court of New York City, General Term.

March 2, 1891.)

Headnote

Sale—Rescission—Kbaud.

Where, in an action to cancel a bill of sale for fraud, and false representations, it appears from plaintiff’s testimony that the false representations specified in the findings of fact were made after the delivery of the bill of sale, and that the judgment for plaintiff was placed upon such false representations rather than the circumstances of fraud found by the court, the judgment will be reversed, and a new trial ordered.

Andrew W. Sohelling sued Cord BischofE and another. From judgment entered upon findings and conclusions defendant BischofE appeals.

Argued before Sedgwick, C. J., and Truax and Dugro, JJ.

Uriah W. Tompkins, for appellant. Petter Coudon and G. A. Seixas, for respondent.

The action, as it was tried, involved the canceling a bill of sale for fraud and false representation. The learned judge below in his findings of fact held that the bill of sale was obtained by means of fraudulent representations specified in the findings. The testimony of the plaintiff, however, was that the representations in the findings were not made before the bill of sale was delivered, but were made afterwards, when, as was alleged, the defendants procured from the plaintiff an offer to allow judgment to be taken against them in an action. There were other circumstances of fraud found by the court, which it may be suggested would suffice of themselves to require the canceling of the bill of sale; but the findings show that the judgment was placed rather upon the fraudulent representations than upon the other circumstances of fraud. Judgment reversed, and new trial ordered, with costs to abide the event. All concur.