Fetzer v. Title Guarantee & Trust Co.

Glennon, J.

The complaint, which is addressed to the equity side of the court, alleges a cause of action for the rescission of the contract of purchase of a guaranteed mortgage certificate on the ground of misrepresentation.

The defendant Title Guarantee and Trust Company asserts, and properly so, that the plaintiff has an adequate remedy at law. (Voehl v. Title Guarantee & Trust Co., 155 Misc. 697; affd., 242 App. Div. 762; affd., 266 N. Y. 662.) In Schank v. Schuchman (212 N. Y. 352) Judge Cardozo said: “ The plaintiffs are simply seeking to get back a sum of money paid under a contract, not affecting real estate, which they have elected to declare a nullity. To render that relief effective, it is not required that a court of equity should anathematize the closed transaction. The cause of action is at law, and the legal remedy is adequate.”. Again, in Seneca Wire & Mfg. Co. v. Leach & Co. (247 N. Y. 1, at p. 7) Judge Crane said: “As no equitable relief was required, it was inappropriate, if not impossible, for the plaintiff to maintain an action for rescission in equity. All it wanted was the return of its money.”

It may well be that plaintiff can spell out a cause of action at law. However, she has failed to do so. Her pleading shows that, prior to the institution of the action, she made a demand for the purchase price and offered to restore the certificate. She fails to show that she actually tendered the certificate at the time demand was made or attempted to make a tender. In other words, something more is required than a mere offer to restore. (E. T. C. Corp. v. Title Guarantee & Trust Co., 271 N. Y. 124.) There Judge Hubbs said: “ Before respondent could rescind the contract, it should have returned or have attempted to make a return of the certificates.' Its letter of August 28, 1934, was not sufficient for this purpose. It stated ‘we * * * hereby tender back to you certificates * * * and demand that you return to us ’ the sum paid. No attempt was ever made to return the certificates. That gesture was ineffectual.”

Accordingly, so much of the order as denied defendant’s motion to dismiss the complaint for insufficiency should be reversed, with twenty dollars costs and disbursements, and the complaint dismissed, with leave, however, to plaintiff to serve an amended complaint within twenty days upon payment of said costs.

Untermyer and Cohn, JJ., concur; Martin, P. J., and Townley, J., dissent and vote for affirmance.