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

Page 858

308 N.Y.S.2d 858

26 N.Y.2d 687, 257 N.E.2d 40

Giselher UNGEWITTER, Appellant-Respondent, v.Bruce F. TOCH et al., Respondents-Appellants.

Court of Appeals of New York.

Jan. 8, 1970.

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,...