Strong v. Strong

• Decision Date: 26 March 1886
• Citation: 102 N.Y. 69,5 N.E. 799
• Parties: STRONG v. STRONG.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 69

5 N.E. 799

STRONG

v.STRONG.¹

Court of Appeals of New York.

Filed March 26, 1886.

Appeal from order general term supreme court, Second department, affirming judgment for plaintiff.

A. R. Dyett, for appellant.

Brown & Dykman, for respondent.

RUGER, C. J.

There was evidence given on the trial from which the referee was authorized to find that the defendant made fraudulent representations to the plaintiff as to his responsibility, which induced her to accept his note, payable at a future day, in settlement of several actions and proceedings then pending in court between them. Among other things, the defendant was permitted by such settlement to pass his accounts as executor of his father's estate, and obtain his discharge from liability to the plaintiff as such executor for her share therein, amounting, as was claimed by plaintiff, to a much larger sum than that agreed to be paid in settlement. The release of the defendant from such liability and other liabilities upon obligations alleged to have been fraudulently incurred, and the extension of time of payment of the amount agreed to be accepted in settlement, as well as of the right to prosecute her original claim, constituted such an injury to plaintiff's rights as entitled her, upon proof that they were fraudulently obtained, to maintain an action therefor, and recover such damages as she might show she had sustained. Upon a discovery of the fraud the plaintiff had a right to pursue either one of two alternatives, viz.: Either to restore what she had received upon the settlement, and claim restoration to the position occupied before the agreement by her; or keep what she had received, and prosecute the defendant for the damages alleged to have been sustained by her thereby. It is true that she could not prosecute both of these remedies, as they are inconsistent with each other, and the election by her of either precluded a resort to the other. It is a settled rule, however, that the right to rescind a contract for fraud must be exercised immediately upon its discovery, and that any delay in doing so, or the continued employment, use, and occupation of the property received under the contract, will be deemed an election to affirm it. Schiffer v. Dietz, 83 N. Y. 300.

It is claimed by the appellant that the conduct of the plaintiff in moving to vacate the decree of the surrogate passing the defendant's account, upon the ground that the same was procured to be entered by the same fraud which is alleged as the basis of this action, was such an election as precludes her from maintaining this action. We do not think that claim is well founded. At the time this motion was made over three and a half years had elapsed since the settlement had been made, and the plaintiff had, during all that time, been in the occupation and enjoyment of the premises at New Rochelle, deeded to her in pursuance of the alleged fraudulent agreement, and had never offered to restore them to the defendant...