Odell v. Barnaby , 199 A.D. 938 ( 1921 )

The complaint for fraudulent representations inducing a contract to buy land specifies that defendants misrepresented: (a) as to ownership of the adjoining lot, and (b) that the mortgage incumbrance on the lot to be sold was only $9,000. Alleging reliance thereon, and the falsity thereof, plaintiff now sues to get back his deposit and expenses of searching the title. But plaintiff does not aver that the contract has been rescinded, or set forth what action was taken on the closing day. Plaintiff would sustain no damage unless the vendor failed to convey the property in accordance with the contract. To recover here the plaintiff must show the materiality of these representations, and further that on discovering the falsity thereof he refused to go on. With the present omissions, there is no complete cause of action. Therefore, the order is reversed, with' ten dollars costs and disbursements, and appellant’s motion for judgment upon the pleadings granted, with ten dollars costs, with leave to amend the complaint within twenty days on payment of ten dollars motion costs and the costs of this appeal. Blackmar, P. J., Mills, Rich, Putnam and Jaycox, JJ., concur.