Ross v. Preston

• Decision Date: 20 April 1944
• Citation: 292 N.Y. 433,55 N.E.2d 490
• Parties: ROSS v. PRESTON et al.
• Court: New York Court of Appeals Court of Appeals

292 N.Y. 433

55 N.E.2d 490

ROSS

v.PRESTON et al.

Court of Appeals of New York.

April 20, 1944.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Alexander J. Ross against Francis Preston and another, as administrators with the will annexed of the estate of William H. Schmidt, deceased, to recover damages for alleged fraud in inducing plaintiff to withdraw his objections to probate of a will. From a judgment of the Appellate Division of the Supreme Court, 266 App.Div. 1061, 45 N.Y.S.2d 410, which affirmed, by divided court, an order of a Special Term of the Supreme Court, Onondaga County, Kingsley, J., granting a motion by defendants for a dismissal of the complaint on the ground that it does not state facts sufficient to constitute a cause of action, the plaintiff appeals.

Affirmed.

J. Norman Crannage, of Syracuse, for appellant.

Alan M. Stroock, of New York City, and Francis Preston, of Syracuse, for respondents.

LEHMAN, Chief Judge.

The plaintiff seeks damages which he asserts resulted from the fraud of William H. Schmidt, the defendants' intestate, hereinafter for brevity referred to as the defendant. The complaint was dismissed upon the defendant's motion on the ground that it does not state facts sufficient to constitute a cause of action. From the complaint it appears that plaintiff, in 1935, filed formal objections to the probate of a paper writing which purported to be the last will and testament of Edward C. S. Fleet upon the ‘grounds that said decedent was under undue influence and lacked testamentary capacity’. The plaintiff was the sole heir and next of kin of the decedent. The defendant is the person named ‘as executor and sole beneficiary’ in the paper writing. The plaintiff and the defendant entered into an agreement ‘by the terms of which, in consideration of the payment by the said William H. Schmidt to the plaintiff of the sum of Five thousand five hundred ($5,500.00) dollars, plaintiff agreed to withdraw his objections and consent that the said purported Will be admitted to probate.’ Pursuant to the agreement the plaintiff executed a stipulation withdrawing his objections and consented to the probate of the will. The will was admitted to probate and the plaintiff executed a general release to the defendant and received the stipulated consideration.

The plaintiff, it is said, was induced to withdraw his objections to the probate by fraudulent representations of the defendant ‘that the estate * * * was comparatively small and that the value thereof did not exceed the sum of Twenty-five thousand ($25,000.00) dollars, and that in view of the amount involved, it would be advisable and more practical for the plaintiff to withdraw his objections to the probate and accept a settlement, rather than to continue his contest to the probate of said Will.’ The value of the estate was, it is said, approximately $372,000 and the defendant fraudulently misrepresented the value in order to induce the plaintiff to withdraw his objections to the probate of the will.

The plaintiff, we assume, could, because of these fraudulent misrepresentations, rescind the agreement to consent to a decree of probate of bring an action for rescission. He would then, however, be obliged to return the consideration he has received and would gain no advantage unless the probate proceedings are reopened and he receives permission, belatedly, to interpose objections to the probate of the will of the decedent and can sustain his objections in the probate proceeding. The plaintiff prefers to retain the consideration paid to him and to affirm the agreement, asking in this action for damages caused to him by the defendant's fraud which induced him to make the agreement. Those damages are the value of the right, which he relinquished, to interpose objections to the probate of the paper writing purporting to be the decedent's will. Reno v. Bull, 226 N.Y. 546, 124 N.E. 144;Sager v. Friedman, 270 N.Y. 472, 1 N.E.2d 971. Injury is an essential element of a cause of action for damages resulting from fraud. Ochs v. Woods, 221 N.Y. 335, 117...