Bankers Federal Savings & Loan Ass'n v. Rudd , 34 N.Y.S.2d 434 ( 1942 )

In an action to foreclose a purchase-money mortgage for default in the payment of monthly installments of principal, interest and taxes, defendants counterclaimed for rescission and the cancellation of the bond and mortgage on the ground of fraud. The court dismissed the complaint and awarded defendants judgment on their counterclaim. Judgment reversed on the law and the facts, with costs, counterclaim dismissed, and judgment directed in favor of plaintiff, with costs. In our opinion there is no evidence of fraudulent representations on the part of plaintiff as to the condition of the premises. But even assuming that plaintiff made the representations of which defendants complain, there is no evidence that plaintiff concealed the true condition of the premises or prevented defendants from ascertaining the facts as to the condition of the premises. Furthermore, defendants are guilty of laches. They occupied the premises for more than four years, during which time they paid all the installments of principal and interest as they became due and did not assert their right to rescind until they were in default on the mortgage, although the evidence shows they must have known of the condition of the premises, of which they now complain, long before they elected to rescind. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.