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Hoch v. Goodhart

65 N.Y.S. 223 Court N.Y. App. Term Decision date 1900-06-13 English

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p. 223
HOCH v. GOODHART.
(Supreme Court, Appellate Term.
June 13, 1900.)

Headnote

Contracts—Rescission—Affirmance by Laches.
Where a party to a contract delays for nearly two months after discovering the fraud of the opposite party, which wrould entitle her to rescind the contract, before doing anything to disaffirm, she will be deemed to have elected to affirm it, and can thereafter only recover the damages which she sustained by reason of the fraud.
Appeal from municipal court, borough of Manhattan, Third district.
p. 224
Action by Emilie Hoch against Emma G-oodhart. From a judgment in favor of plaintiff, defendant appeals.
Reversed.
Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.
Albert L. Phillips, for appellant.
August P. Wagener, for respondent.

The contract between the parties was made on November 13, 1899, and, although the plaintiff learned immediately of defendant’s alleged fraud, no attempt was made to disaffirm the contract until the following January. Not having elected to rescind promptly upon discovery of the fraud, the plaintiff must be deemed to have elected to affirm the contract (Hallahan v. Webber, 7 App. Div. 122 , 40 N. Y. Supp. 103 ), and she must be confined in her recovery to the damages sustained by reason of the fraud. Under the proofs,' plaintiff cannot sue for the return of the purchase price.

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

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