McNally v. Fitzsimons , 75 N.Y.S. 331 ( 1902 )

Van Brunt, P. J.:

I concur in the conclusion arrived at by the court below, but I do not concur in that portion of the opinion in which the learned judge states that in effect the complaint contains an offer to restore' what John P. McNally received.

This action is undoubtedly brought for the purpose of rescinding an executed, or partly completed, partition between certain tenants in common of real estate. In consequence of the fact that the drawer of the complaint did not seem to comprehend what was necessary to the execution of a deed, we are left in doubt from the allegations of the complaint as to whether or not any deeds were executed to the deceased John P. McNally. The pleader seems to be ignorant of the fact that for the due execution of a deed, delivery^ as well as the other requisites, is necessary. If the deeds of the property alleged to have been assigned to the deceased John P. McNally were executed, then it is clear that the complaint in this action is ■clefective in not containing an offer to restore, and alleging an ability to restore. (Brewster v. Wooster, 131 N. Y. 473, 477, and cases cited; ■ Cox v. Stokes, 156 id. 491, 506.) The complaint contains allegations that the deeds to McNally were executed, and it also contains allegations that they were not executed. It says in ’ paragraph 9 of the complaint that the other tenants in common released to said John P. McNally the premises which were assigned to him; in paragraph 11 it speaks of the deed of a part of the premises which were assigned to John P.' McNally in the partition as being made and executed, and in paragraph 12, speaking of the ■defendant Mary E. Fitzsimons, it alleges that she executed and caused or procured others to execute said deed to John P. McNally, and then in paragraph 14 it alleges upon information and belief that the deeds, executed to said McNally in release, or pretended release, were never delivered to said McNally or to said Harrigan as his committee, or to' any other .person on his behalf. But in view of the rule that a pleading is to be most favorably construed in the case of a demurrer where there are inconsistent allegations, I suppose that we are to take the allegation which will support the cause of action, rather than the one which is fatal to it. Assuming, therefore, that the deeds in question were never executed because of non-delivery to the lunatic, or his committee, or to any other person on his behalf, there was no necessity of an allegation of an offer to restore. But if it should turn out upon the trial that these deeds had been executed by delivery, then, clearly, the bill would have to be dismissed because it did not contain any offer to restore, which, under well-settled principles of law, is absolutely necessary in the case of rescission, except under circumstances which are not applicable to the case at bar.

Upon the main question, it seems to us that in view of the fact that the cotenants were dealing with the committee of a lunatic who had no knowledge in respect to the condition of the real estate, they were bound to the utmost good faith. The relations of the parties would have been entirely different had they not been dealing with a lunatic whose committee could not be supposed to be familiar with the condition of the property to be partitioned, and who, as is alleged, relied upon the representations made by the cotenants of the lunatic that the partition was fair and equitable. The ordinary rule of crneat emptor cannot be held to apply to parties situated as were those who took part in this partition.

We think, therefore, upon the whole, that the judgment should be affirmed, with costs, with leave to the defendants to withdraw their demurrer and answer upon payment of costs in the court below and of this appeal.

Ingraham, McLaughlin and Hatch, JJ., concurred; Laughlin, J., concurred in result.

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