Volume 237 — New York Reports

It appearing by the conveyance to plaintiffs’ grantors that the west line of the property in dispute extended along the shore of the lake, plaintiffs’ title passed to low-water mark, and regardless of riparian rights the judgment of the trial court was proper.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 6, 1923, reversing an award of the state industrial board made under the Workmen’s Compensation Law and remitting the matter to said board. Compensation was properly awarded at the rate of fifteen dollars a week. (Cons. Laws, ch. 67, § 15, subd. 5.) Claimant is entitled to twenty dollars a week. (Phonville v. N. Y. & C. S. S. Co., 226 N. Y. 622.)

<p>Real property — action to rescind purchase of land induced by fraud and misrepresentation of vendors — when' plaintiffs' entitled to judgment for return of purchase money paid and for discharge and cancellation of securities given for part of . purchase price — when use of property after discovery of fraud not a waiver of plaintiff’s rights or an election to ratify the contract.</p> <p>1. A person who has been induced by fraudulent representations to become ■ the purchaser of property has, upon discovery of the fraud, three remedies open to him, any of which he may elect. He may rescind the contract absolutely and sue in an action at law to recover the consideration parted with upon the fraudulent contract. He may bring an action in equity to rescind the contract and in that action have full relief. Such an action is not founded upon a rescission, but is maintained for a rescission, and it is sufficient, therefore, for the.. plaintiff to offer in his complaint to return what he has received and make a tender of it on the trial. Lastly, he may retain what he has. received and bring an action at law to recover the damages sustained. A buyer cannot, however, recover both damages and purchase price when a case has been tried on the basis of rescission.</p> <p>2. The doctrine of election is one of substance and not of mere words. Using a property sold under misrepresentations made by the vendor may or may not be a ratification of the contract according to circumstances. When it appears that the acts performed are inconsistent with the claim of repudiation, then, and then only, can there be an election to confirm and adopt the contract. A particular act for which an authority may be cited as indicating an adoption of a contract may, under other circumstances, have no such force and effect.</p> <p>3. Plaintiffs purchased from defendants land upon which are two springs which defendants represented to be springs of natural mineral waters, which had been bottled and sold as they flowed from the ground. Defendants also represented that the daily natural flow of water from each spring was a specified number of gallons. After plaintiffs had entered into possession of the property and installed additional machinery for bottling and shipping such mineral waters, it was discovered that the waters were not natural mineral waters but fresh waters from fresh water springs with the addition of certain chemicals and that the flow of water was much less than it was represented to be. Thereafter this action was commenced to rescind the purchase and for the cancellation and discharge of the securities given as part of the purchase price. Under the circumstances the plaintiffs are-entitled to the return of then purchase money, which was paid in cash, ■ with interest thereon from the date of payment and, also, to .thd cancellation of the securities given for the balance of the purchase -.price.</p> <p>4. The fact that plaintiffs remained in possession and actual use of the property and continued bottling of water and performed other acts'of ownership until' about three months after the beginning of this action, does not, under the circumstances, operate as a ratification of the contract or as a waiver of then right to rescind. The fact that plaintiffs, after bringing the action for rescission and before judgment, made some use of the property is not fatal to their suit, as a'matter of law, especially-where, as in this case, such use consisted of such slight and trivial acts in comparison with the large subject-matter of the transaction as did not amount to an election and a confirmation of the contract as a matter of law.</p> <p>5. The trial court, in addition to returning to plaintiffs the cash paid upon the purchase price and canceling the securities given for the balance, awarded items in the way of damages, which included general expenses in the operation and installation of machinery, cost of new machinery and labor. This award of damages was erroneous. The plaintiffs brought an action for rescission; they did not retain what they had received and bring the action at law to recover the damages sustained.</p> <p>Weigel v. Cook, 206 App. Div. 727, modified and affirmed.</p>

<p>Appeal from a judgment of the Supreme Court, rendered May 17, 1923, at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of murder in the first degree.</p>