Ungewitter v. Toch

Decision Date21 November 1968
Citation294 N.Y.S.2d 1013,31 A.D.2d 583
PartiesGiselher UNGEWITTER, Appellant, v. Bruce F. TOCH et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Folmer, Fenstermacher & Yesawich, Theodore Fenstermacher, Cortland, for appellant.

Hinman, Howard & Kattell, A. Lawrence Abrams, Binghamton, for respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GABRIELLI, JJ.

PER CURIAM.

Appeal from a judgment of the Supreme Court, Cortland County, awarding appellant the amount of $36,842.47 as damages for respondents' fraudulent misrepresentation and from an order of the same court denying appellant's motion to set aside its determination refusing to direct rescission.

It is not here disputed that the respondents fraudulently misrepresented the condition of the farm and related property they sold to appellant for $90,000. Appellant initially asserts that since he requested rescission as his relief, the trial court erred in refusing to grant him the same and instead awarded him damages. The trial court in refusing to grant rescission stated: 'It would require further lengthy litigation, and would be impractical, to grant Plaintiff rescission and to adjust the equities and accounts between Plaintiff and Defendant from August 29, 1959 (the date appellant took title) to date (January 5, 1967).' Clearly under the CPLR the choice of available relief lies with the sound judgment and discretion of the trial court (CPLR 3017 and revision notes thereto; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3017.06). Moreover, it is well established that damages may be granted in lieu of equitable relief 'where the granting of equitable relief appears to be impossible or Impracticable' (emphasis added) (Doyle v. Allstate Ins. Co., 1 N.Y.2d 439, 443, 154 N.Y.S.2d 10, 13, 136 N.E.2d 484, 486; Valentine v. Richardt, 126 N.Y. 272, 27 N.E. 255; Calhoun v. Millard, 121 N.Y. 69, 24 N.E. 27, 8 L.R.A. 248). Here admittedly the farm in 1967 was not the same farm as it was in 1959, and thus any attempt at effecting rescission, even if possible, would be extremely difficult and involved. Accordingly, we see no basis to disturb the trial court's denial of that relief.

Appellant next asserts that if rescission is not available the amount of damages awarded were inadequate. The trial court found that the value of the farm and attendant property as of the date of sale was $65,000 and thus that damages were the $25,000 difference between such value and the contract price of $90,000. Appellant does not dispute...

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  • Astra Usa, Inc. v. Bildman, SJC-10361
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 5 octobre 2009
    ...opposing party's law firm and to order American Arbitration Association to reinstate original arbitrator); Ungewitter v. Toch, 31 A.D.2d 583, 294 N.Y.S.2d 1013 (1968), aff'd, 26 N.Y.2d 687, 308 N.Y.S.2d 858, 257 N.E.2d 40 (1970) (damage award in lieu of rescission for fraudulent purchase of......
  • Pursuant to Bus. Corp. v. Lowbet Realty Corp. (In re Petition to Appoint for Lowbet Realty Corp.)
    • United States
    • New York Supreme Court
    • 18 février 2014
    ...is impossible or impracticable, money damages may be awarded instead of the equitable remedy of rescission ( Ungewitter v. Toch, 31 A.D.2d 583, 584, 294 N.Y.S.2d 1013 [3d Dept. 1968], affd.26 N.Y.2d 687, 308 N.Y.S.2d 858, 257 N.E.2d 40 [1970];see also 423 South Salina St. v. City of Syracus......
  • 423 South Salina Street, Inc. v. City of Syracuse
    • United States
    • New York Court of Appeals Court of Appeals
    • 20 novembre 1986
    ...1 N.Y.2d 439, 443, 154 N.Y.S.2d 10, 136 N.E.2d 484; Ungewitter v. Toch, 26 N.Y.2d 687, 308 N.Y.S.2d 858, 257 N.E.2d 40, affg. 31 A.D.2d 583, 294 N.Y.S.2d 1013; Kaminsky v. Kahn, 23 A.D.2d 231, 237, 259 N.Y.S.2d 716). Thus, plaintiff has standing to maintain its cause of action for damages. ......
  • Copland v. Nathaniel
    • United States
    • New York Supreme Court
    • 1 février 1995
    ...otherwise appropriate, the Court may grant whatever relief it can in equity, with adjustments if necessary. Ungewitter v. Toch, 31 A.D.2d 583, 294 N.Y.S.2d 1013 (3rd Dep't 1968), aff'd, 26 N.Y.2d 687, 308 N.Y.S.2d 858, 257 N.E.2d 40 (1970); 91 N.Y.Jur.2d, Real Property Sales & Exchanges, § ......
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