3. VENDOR AND PURCHASER (§ 33*)-MISREPRESENTATIONS-MATERIALITY.

A contract for the sale and purchase of real estate, which provides that the premises shall be taken subject to monthly tenancies and leases of the various apartments, and that the rents shall be apportioned, renders the terms of the leases immaterial, and that the vendor fraudulently represented that the premises were leased as apartments to divers tenants on leases, and that no free rents were given, was immaterial.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 40-53; Dec. Dig. § 33.*]

4. VENDOR AND PURCHASER (§ 33*)-MISREPRESENTATIONS-MATERIALITY. A contract for the sale and purchase of real estate, which provides that the vendor will take on the premises a second mortgage of $17,000 after a first mortgage of $70,000, and that, in the event of the purchaser's inability to secure a first mortgage loan of $70,000, the vendor will increase the second mortgage to the extent necessary, not more than $5,000, contemplates that the vendor may not obtain a loan of $70,000, rendering the fraudulent misrepresentations of the vendor that a third person had accepted a loan of $70,000 on the premises immaterial.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. $$ 4053; Dec. Dig. § 33.*]

5. Vendor and Purchaser (§ 33*)—Fraudulent RepreseNTATIONS—PROMISES. A fraudulent representation by a vendor that third persons would lend at least a specified sum on first mortgage on the premises is promissory, and the purchaser may not rely on it.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 4053; Dec. Dig. § 33.*]

Appeal from City Court of New York, Trial Term.

Action by Leo J. Kreshover against Morris Berger and another. From a judgment dismissing the complaint, with costs, plaintiff appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

L. & A. U. Zinke (Louis Zinke, of counsel), for appellant.

Harry M. Goldberg (Max D. Steuer and I. Maurice Wormser, of counsel), for respondents.

LEHMAN, J. The plaintiff herein alleges that the defendants, in order to induce the plaintiff to enter into a contract for the purchase of certain premises, had represented to the plaintiff: (1) That the walls of the said premises did not encroach upon the adjoining premises; (2) that the walls were properly constructed, and no question as to their construction had ever arisen; (3) that the premises were leased as apartments to divers tenants on leases, and no free rents were given; (4) that the Lawyers' Title Insurance & Trust Company accepted a loan of $70,000 upon the said premises; and (5) that either the said company or the Title Guarantee & Trust Company would lend at least $70,000 on first mortgage upon the said premises. The plaintiff further alleges that the plaintiff, in reliance upon the truth of the said representations, entered into a contract for the purchase of the premises, and had paid the sum of $2,000 upon the said contract. The plaintiff seeks to recover the said sum of $2,000 on the ground that the said representations were false, in that: (a) The easterly wall bulges and encroaches upon the adjoining premises; (b) the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

walls have not been properly constructed; (c) leases have been made to tenants with the understanding that for one month out of twelve during the year the tenant need pay no rent; (d) the Lawyer's Title Insurance & Trust Company had declined to pass a loan of $70,000, by reason of the construction of the easterly wall; (e) the Title Guarantee & Trust Company would make no loans, by reason of the construction of the easterly wall, without a license from the owner of the adjoining premises on the east. The trial justice refused to allow any evidence of oral misrepresentations on these points, stating that they would vary the written instrument, and are cognizable only in an equity tribunal.

It is unquestionably true that, in an action to recover the amount paid upon a contract rescinded on account of alleged fraudulent misrepresentations, the plaintiff should be allowed to show that by reason. of such fraudulent misrepresentations the minds of the parties have never met, even though the misrepresentations were parol; but where the contract itself contains provisions that negative the claim that these misrepresentations were relied upon, or contains other representations upon the same subject inconsistent with the alleged oral representations, then the evidence of representations is not introduced for the purpose of showing that the minds of the parties did not meet on this contract, but only to vary the written contract and is improper. In this case the contract contains clauses as follows:

(1) "Subject to state of facts shown on survey of Chas. A. Meyer & Son, dated Sept. 1, 1905.

*

(2) "The party of the first part agrees to furnish the certificates of the tenement house and building departments, showing erection of the building on the premises hereby contracted to be conveyed in accordance with building laws."

The clauses cover the alleged misrepresentations as to the walls of the building, and any proof of these misrepresentations would vary the written instrument.

The contract further provides that the premises shall be taken subject to monthly tenancies and leases on various apartments, and that the rents shall be apportioned. The parties have, therefore, expressly agreed that the terms of the leases are not material.

The representation that the Title Insurance & Trust Company accepted a loan of $70,000 is immaterial, because the contract provides that the defendant would take upon the premises a second mortgage of $17,000 after a first mortgage of $70,000; but, in the event that plaintiff should be unable to secure a mortgage loan of $70,000, then the defendant agreed to increase the second mortgage to the extent necessary, "but in no event is said increase to be more than $5,000." Obviously, therefore, the plaintiff contemplated that he might not obtain a loan of $70,000. Moreover, the complaint does not allege that the title company had not accepted a loan, but only states that it had declined to pass a loan. The oral representations may therefore have been true.

The fifth representation is promissory in its nature, and the plaintiff had no right to rely upon the same.

It would appear, therefore, that, if the evidence of these representa

justice said, of reforming the contract in these particulars. The entire record shows that the plaintiff is now trying to interpolate into the contract new clauses.

The judgment should therefore be affirmed, with costs. All concur.

(63 Misc. Rep. 77.)

GA NUN v. PALMER.

(Supreme Court, Special Term, Westchester County. March, 1909.) LIMITATION OF ACTIONS (§ 46*)—ACCRUAL OF CAUSE-BREACH OF CONTRACT.

Plaintiff and decedent made a written contract, by which plaintiff was to care for decedent during her life, and decedent agreed to pay a certain amount per month while she lived, and leave plaintiff a specified amount at her death. After a few months decedent left plaintiff, and and remained away until her death, leaving plaintiff nothing. Held, that plaintiff's action for breach of contract accrued when decedent left her house, and was barred by limitation after six years.

[Ed. Note. For other cases, see Limitation of Actions, Dec. Dig. § 46.*] Action by Mary F. Ga Nun, on behalf of herself and all other creditors of Jane M. Sands, deceased, against Mary E. Palmer, individually and as executrix of the will of Jane M. Sands, deceased. Judgment for defendant.

Barnum & Wells (David H. Hunt, of counsel), for plaintiff. George H. Hyde (George H. Taylor, Jr., of counsel), for defendant.

MILLS, J. This is an action brought under the provisions of section 1, c. 314, p. 506, of the Laws of 1858, as amended by chapter 740, p. 1843, of the Laws of 1894, which reads, so far as material, as follows:

"That any executor

may for the benefit of creditors or others interested in the estate * disaffirm, treat as void, and resist all acts done, transfers and agreements made in fraud of the rights of any creditor, including themselves and others, interested in any estate or property, held by or of right belonging to any such trustee or estate. And any creditor of a deceased insolvent debtor having a claim or demand against the estate of such deceased debtor exceeding in amount the sum of one hundred dollars may in like manner, for the benefit of himself and other creditors interested in the estate or property of such deceased debtor, disaffirm, treat as void, and resist all acts done, and conveyances, transfers and agreements made, in fraud of the right of any creditor or creditors by such deceased debtor, and for that purpose may maintain any necessary action to set aside such acts, conveyances, transfers or agreements."

In November, 1899, the decedent, Jane M. Sands, a maiden lady somewhat advanced in years, entered into with the plaintiff, a cousin, the written contract alleged in the complaint, which is in the following words:

"Nov. 23, 1899.

"I, Mary F. Ga Nun, do promise to care for Jane M. Sands in sickness and health as long as she lives. I, Jane M. Sands, do promise to pay Mary F Ga Nun seventy dollars a month for the support of the house and her clothes as long as I live, and at my death she is to have twenty thousand dollars she will find in the safe deposit on New York, and she is to take my keys and dis*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tribute the packages in box as they are marked, and all my clothes and wearing apparel and silver (in short) every thing in the house shall be Mary F. Ga Nun's. [Signed] Jane M. Sands. "Louis W. Jansen, A. S. Leonard, M. D., W. G. Bouvier, Witnesses."

In pursuance of such contract the plaintiff undertook the care and maintenance of Miss Sands, and continued the same until May, 1900, when the decedent left the plaintiff and went to live with the defendant, with whom, some time afterwards, she entered into a somewhat similar oral contract, providing, however, for a less compensation. She continued to reside with the defendant, and to be cared for and maintained by her, until she died on the 17th of August, 1906, leaving a will making the defendant her sole legatee and devisee and appointing her sole executrix. Such will was, in March, 1907, duly admitted to probate by the surrogate of the county of Westchester, where the testatrix resided at the time of her death, and letters testamentary duly issued to the defendant, who thereupon qualified and assumed to act. At the time of her death the testatrix left substantially no

estate.

The claim of the plaintiff, as indicated by the complaint, and as presented by her counsel upon the trial and in his brief submitted, is, in substance, that the plaintiff, having held herself ready from May, 1900, on to the death of the decedent, to perform the services required of her by the written contract, was entitled at the death of the decedent to receive the sum of $20,000 mentioned in the agreement, and was therefore a creditor of the decedent at the time of her death for that amount, and that the decedent died practically insolvent, and that prior to her death, and during the interval when she was residing with the defendant, she, without consideration, transferred to the defendant a considerable amount of property; and the plaintiff in this action seeks to have such transfers adjudged fraudulent as to the creditors of the decedent, and especially as to her, and therefore set aside, and the property applied to the payment of such creditors. The answer sets up as a special defense the six-year statute of limitations.

The evidence abundantly establishes that the breach by the decedent of the written contract between her and the plaintiff took place in May, 1900. The decedent left the house of the plaintiff in that month, took her own chattels away from the same, and went to live with the defendant at Poughkeepsie. The plaintiff thereupon, and, indeed, shortly before, employed a lawyer to enforce her claims against the defendant. He presented to the deceased a bill in behalf of the plaintiff for the compensation or allowance of $70 a month up to May 1, 1900, and wrote to her several letters in effect demanding payment of such bill, and stating that, if the matter were not speedily settled, suit would be commenced. All the material facts indicate to my mind very decisively that both parties to the written contract understood, in May, 1900, that the defendant had broken the same, and that her retirement from the plaintiff's home constituted such breach. The decedent died August 17, 1906, more than six years after the breach.

It seems to be well established by the case of Henry v. Rowell, 31 Misc. Rep. 384, 64 N. Y. Supp. 488, affirmed by the Appellate Division.

tice Gaynor at Special Term (63 App. Div. 620, 71 N. Y. Supp. 1137), that the cause of action for such a breach must be regarded as having accrued at once upon and after the breach, whatever measure of damages the plaintiff may elect to claim. While, in that case, the plaintiff elected to claim upon a quantum meruit for the value of the 12 years of board and lodging already furnished, the reasoning of the opinion of Mr. Justice Gaynor at Special Term seems to me to be equally applicable and controlling in a case where the plaintiff may elect to claim as well the value of the broken contract, as presumptively being the compensation for the full service. Such opinion upon that point said: "In cases like the present one, where the contract is broken while it is being performed by the parties, the cause of action for the breach which arises at once is the only cause of action which accrues. That the contract is not yet completed is no reason for postponing the commencement of the action to the time when it would be completed, if carried out, and reckoning the running of the statute of limitations from that time. The plaintiff here was not at liberty to continue to treat the contract as in life until the decedent's death. He had not the legal right to require or demand that she leave a will giving him all of her property, notwithstanding that she had not received the con sideration agreed upon therefor, nor that she provide in her will for a fair compensation to him (which he is now suing for) for the amount of board and lodging which she had received from him; for she had not agreed to do that. His only right was to demand of her the damage she became liable to him for by her refusal to go on with the contract, and that he places in this action at the value of the board and lodging he furnished to her." 31 Misc. Rep. 387388, 64 N. Y. Supp. 491.

From this extract I infer that, whatever might be the measure of damages, such breach creates only one cause of action, then immediately accruing. It seems to me, therefore, plain that, if the plaintiff's cause of action be otherwise established, it was before the death of the decedent barred by the six-year statute of limitations.

Therefore, without attempting to determine the other controverted questions, I decide that the defense of the statute of limitations as a bar to plaintiff's claim is proven, and that hence defendant is entitled to judgment dismissing the complaint upon the merits, with costs.

WETSTEIN v. GRIECO.

(Supreme Court, Appellate Term. April 8, 1909.)

LANDLORD AND Tenant (§ 200*)—LIABILITY FOR RENT-FAILURE TO OUST DISREPUTABLE PEOPLE.

Where a tenant who rented by the month remained on the premises for eight days after a promise by his landlord to oust disreputable people, and that if he did not the tenant need only pay for what days he stayed, he is liable therefor, but for no more.

[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 200.*]

Appeal from Municipal Court, Borough of Manhattan, Third Dis

trict.

Action by William Wetstein against Frank Grieco. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes