Burstein v. Breng , 126 N.Y.S. 1123 ( 1910 )

If this action were to be deemed one to recover for fraud and deceit we think it could not be maintained. It seems to us, however, that it may be treated as an action to recover the amount paid upon the ground of failure of consideration for the contract arising out of mutual mistake of the parties in connection with the subject-matter thereof. Judgment of the Municipal Court affirmed, with costs. Woodward, Burr, Thomas, Rich and "Carr, JJ., concurred.