Schelling v. Bischoff — 37 N.Y. St. Rep. 365

Majority

p. 365

Andrew W. Schelling, Resp’t, v. Cord Bischoff et al., App’lts.

(New York Superior Court, General Term,

Filed March 2, 1891.)

Headnote

Sale—Fraud—Rescission.

_ A judgment setting aside a bill of sale for fraud and false representations which is based on false representations found by the court, which representations appear by the testimony to have been made after the bill of sale was delivered, cannot be allowed to stand, although there were other circumstances of fraud which of themselves might require the cancellation of the bill of sale.

Appeal by defendant from judgment entered upon findings and conclusions.

Uriah W. Tompkins, for app’lts; Petter Coudon and G. A. Seixas, for resp’t.

The action as it was tried involved the cancel-ling 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

p. 366

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 cancelling 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.

Sedgwick, CL J., Truax and Dugro, JJ., concur.