Meyer Coal Corp. v. Somers & Conzen Coal Corp. , 228 A.D. 821 ( 1930 )

Judgment and order reversed upon the law and the facts and a new trial granted, costs to abide the event. In our opinion, the evidence presented questions of fact to be determined by the jury, and it was error for the trial court to direct a verdict in plaintiff’s favor. We are further of opinion that the commencement of the former action to rescind the contract did not constitute an election of remedies by plaintiff if, at the time of its commencement, plaintiff did not have full knowledge of the facts necessary to make such an election. Whether or not it had such knowledge is one of the issues to be submitted to the jury with the other questions of fact. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.