D'Antoni v. Goff

• Decision Date: 13 May 1976
• Citation: 383 N.Y.S.2d 117,52 A.D.2d 973
• Parties: John D'ANTONI, Appellant, v. Percy GOFF et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 117

383 N.Y.S.2d 117

52 A.D.2d 973

John D'ANTONI, Appellant, v. Percy GOFF et al., Respondents.

Supreme Court, Appellate Division, Third Department.

May 13, 1976.

Alex Wiltse, Jr., Catskill, for appellant.

Bagley, Chadderdon, Pulver & Stiefel, Catskill (John C. Bagley, Catskill, of counsel), for respondents.

Before GREENBLOTT, J.P., and KANE, MAHONEY, MAIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court in favor of defendants, entered December 13, 1974 in Greene County, upon a decision of the court at a Trial Term, without a jury.

The parties are owners of contiguous parcels of land in the Town of Cairo. During the fall of 1965 Goff contacted D'Antoni and advised him that he had been informed by a representative of the State Conservation Department that their parcels overlapped. After extended negotiations, during which Goff supplied D'Antoni with a free-hand sketch of the area, the parties agreed that Goff would purchase from D'Antoni a small parcel of land, outlined on the sketch, for the sum of $1,000. This agreement was later enlarged to include a second parcel and the consideration was increased to $1,400. On July 20, 1966 the parties met in Goff's attorney's office and D'Antoni, for the first time, made inquiry as to the number of acres of land being conveyed by the deed. Neither Goff nor his attorney knew. It appeared that neither party had surveyed the parcels and Goff the purchaser, had not insisted upon a title search. Thereupon, Goff called the State Conservation Department representative who had prepared the description which Goff's lawyer had inserted in the proposed deed, and was informed that 15 acres was a 'ball-park figure'. Goff's attorney then added the phrase 'both of said parcels containing by estimation 15 acres of land' to the description and the parties executed the deed. Approximately three years later Goff had his lands surveyed and discovered that the original parcel, which he had offered to purchase for $1,000, contained 5.4 acres, while the second parcel, for which he paid only $400, contained 62.9 acres. He did not inform D'Antoni of his findings; rather, he conveyed the parcels to himself and his wife as tenants by the entirety. In October of 1970 D'Antoni had his remaining lands surveyed and learned that he had conveyed to Goff 68.3 acres for the sum of $1,400. Goff refused to accept the consideration paid plus interest and expenses in exchange for a reconveyance and D'Antoni sued in recision alleging fraud and misrepresentation. The trial court dismissed the complaint, finding that D'Antoni had failed to prove the requisite elements of fraud and, thus, failed to sustain his burden. This appeal ensued.

The trial court was correct in its finding that plaintiff failed to prove any of the essentials necessary for success on the theory of fraud, the proof being clearly to the contrary. Indeed, a summary of the record establishes that the parties were only concerned with correcting an ambiguous boundary line and neither had any direct knowledge of the acreage exchange necessary to accomplish their joint purpose. Goff, like D'Antoni, did not know the number of acres involved and, therefore, was incapable of formulating an intentional perversion of the truth to induce D'Antoni to convey...