Leary v. . Geller
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at Special Term. The defendant demurred to the plaintiff’s complaint, which, upon motion, was overruled by the Special Term.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at Special Term. The defendant demurred to the plaintiff’s complaint, which, upon motion, was overruled by the Special Term. The Appellate Division reversed the Special Term and sustained the demurrer, granting the plaintiff twenty days in which to serve an amended complaint upon the payment of costs. The plaintiff not complying with this order, final judgment of…
1Opinion of the CourtCrane, J.
The prayer of the complaint has, no doubt, been somewhat misleading in this case'. It asks for a reformation of an assignment and a release, whereas the remedy is a cancellation of these instruments in so far as they include the stocks in question. It may be, as stated in the opinion of the Appellate Division, that the reformation of an instrument can only be had for mutual mistake or actual fraud. We need not stop to discuss the point, as the complaint contains a sufficient cause of action for rescission or cancellation. Equity will, in a proper case, avoid and set aside a transaction…
2Cases cited4 opinions
- Wetmore v. . PorterNew York Court of Appeals · 1883
- Bloomquist v. . FarsonNew York Court of Appeals · 1918
- Jones v. GouldAppellate Division of the Supreme Court of the State of New York · 1908
- Canadian Agency, Ltd. v. Assets Realization Co.Appellate Division of the Supreme Court of the State of New York · 1914
3Cited by19 opinions
- City of Syracuse v. . HoganNew York Court of Appeals · 1923
- Brennan v. PersselliIllinois Supreme Court · 1933
- American Surety Co. v. Patriotic Assurance Co.New York Court of Appeals · 1926
- Superior Brassiere Co. v. ZimetbaumAppellate Division of the Supreme Court of the State of New York · 1925
- In re the Estate of WeinbergNew York Surrogate's Court · 1937
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