Ungewitter v. Toch
| Decision Date | 08 January 1970 |
| Citation | 257 N.E.2d 40,26 N.Y.2d 687,308 N.Y.S.2d 858 |
| Parties | , 257 N.E.2d 40 Giselher UNGEWITTER, Appellant-Respondent, v. Bruce F. TOCH et al., Respondents-Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Third Department, 31 A.D.2d 583, 294 N.Y.S.2d 1013.
Folmer, Fenstermacher & Yesawich, Cortland (Theodore Fenstermacher, Cortland, of counsel), for plaintiff-appellant.
Hinman, Howard & Kattell, Binghamton (A. Lawrence Abrams, Eugene E. Peckham, Binghamton, of counsel), for defendants-respondents.
Purchaser brought action against vendor for rescission of sale of farm, on ground of alleged fraudulent misrepresentation by vendor.
The Supreme Court, Cortland County, entered a judgment denying rescission but awarding purchaser money damages in amount of $25,000 in lieu of rescission.
The Appellate Division modified the judgment on the law and the facts so as to increase the additional allowance and, as so modified, affirmed. The Appellate Division, in refusing to grant rescission, held that it would be impractical, to grant purchaser rescission and to adjust the equities and accounts between purchaser and vendors from 1959, the date on which purchaser took title, to 1967, and that 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, and that purchaser was entitled to have additional allowance under CPLR 8303(a), par. 2 increased from $1,250 to $3,000.
The purchaser appealed to the Court of Appeals, contending that purchaser was entitled to rescission and also to be restored to the status quo ante, either as a matter of right because rescission was possible, or, in exercise of a sound judicial discretion, because rescission was not impracticable, and that the purchaser was entitled to damages based on loss of 'labor income' whether or not rescission was granted, and that the increase in the allowance granted to purchaser from $1,250 to $3,000 was not improper. The vendors contended that the 1969 Amendment to CPLR 5601(a) abolished purchaser's right to appeal and that the Court of Appeals no longer had jurisdiction to hear the appeal, and that in an action for rescission, the court in a proper case has discretion to deny rescission and award damages, and that the court properly exercised such discretion in the case, and that amount of damages awarded to purchaser was based on proper measure of damages and...
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Astra Usa, Inc. v. Bildman, SJC-10361
...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 30. Our conclusions on the issue of forfeiture make it unne......
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Pursuant to Bus. Corp. v. Lowbet Realty Corp. (In re Petition to Appoint for Lowbet Realty Corp.)
...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 Syracuse, 68 N.Y.2d 474, 483, 510 N.Y.S.2d 507, 503 N.E.2d 6......
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423 South Salina Street, Inc. v. City of Syracuse
...specific relief demanded' " (Doyle v. Allstate Ins. Co., 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 Thus, plaintiff has sta......
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Copland v. Nathaniel
...... 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 ......