Serota v. Shour

Order in so far as appealed from, granting defendant’s motion to dismiss the complaint upon the ground that it is insufficient in law, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Giving the plaintiff the fair and reasonable intendments that may be implied in his favor, the complaint sufficiently states a cause of action for the recovery of moneys paid under a contract of sale which the seller has failed to perform, *835with a consequent failure of consideration. This on the theory of rescission. This makes it unnecessary to pass upon the question whether a cause of action in fraud is also alleged. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.