Frederick Loeser & Co. v. Macklin (235 A.D. 797, 1932)

Judgment reversed on the law, with Costs, judgment directed for plaintiff for the amount of its claim, and the counterclaim dismissed, with costs. Defendant’s conduct and correspondence, from the time the instrument was installed in her home in February, 1929, down to September 26, 1929, when she wrote plaintiff the letter marked defendant’s Exhibit A, were entirely inconsistent with her present claim that she rescinded the contract and tendered back the piano within a reasonable time after she says she discovered the fraud, which was immediately following the installation of the instrument. Lazansky, P. J., Hagarty and Tompkins, JJ., concur; Kapper and Davis, JJ., concur for reversal but dissent as to direction of judgment for plaintiff and as to dismissal of the counterclaim, and favor a new trial on the ground that the counterclaim in the action might well have been treated as a claim for damages for fraud, and apparently it was so considered on the trial; and that defendant was entitled to make such a counterclaim under the authority of Vail v. Reynolds (118 N. Y. 297). Appeal from order denying motion for a new trial dismissed.