Spinner v. Bergen Assocs., Inc.
| Decision Date | 11 July 1933 |
| Citation | 262 N.Y. 615,188 N.E. 89 |
| Parties | Albert SPINNER, Respondent, v. BERGEN ASSOCIATES, Inc., Appellant, Impleaded with Others. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment, entered March 2, 1933, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (237 App. Div. 610, 262 N. Y. S. 459), reversing on the law and facts a judgment in favor of defendant-appellant entered upon a dismissal of the complaint by the court on trial at Special Term, and directing judgment in favor of plaintiff upon new findings. The action was brought to rescind and cancel contracts for the purchase by plaintiff from defendant Bergen Associates, Inc., of certain parcels of real property; to recover money paid under such contracts; to cancel and declare void a deed for certain parcels; to compel such defendant to receive a reconveyance of the property covered by the deed; and to cancel and declare null and void any and all instruments executed by plaintiff to defendant. The first cause of action alleged in the complaint was predicated upon the alleged fraudulent representations of an employee of the selling organization of defendant. The second cause of action, based upon a conspiracy of all the defendants to defraud plaintiff, was withdrawn at the end of the plaintiff's case. The answer of defendant-appellant, the only defendant served with a summons and complaint in the action, admitted the receipt of the sum of money sought to be recovered by plaintiff, the execution of the agreements and deed, and the agency of the selling organization, but denied the agency of the employee of the selling organization and the alleged fraudulent representations, and set up as affirmative defenses the execution of a general release to it by plaintiff and a waiver of the alleged fraud by payments by plaintiff to it after knowledge of the fraud.
Joseph Steven Frank and Otis S. Carroll, both of New York City, for appellant.
Theodore Arnold, Hyman Eller, and Leon Bleecker, all of New York City, for respondent.
Judgment affirmed, with costs.
HUBBS, J., not sitting.
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