Morris v. Hoffman

¶1In an action to recover damages for fraud and deceit, order denying appellants’ motion for judgment on the pleadings, and order granting in part respondents’ motion to strike out defenses, insofar as appealed from, affirmed, with one bill of $10 costs and disbursements. The language in the complaint to the effect that the plaintiffs rescinded the agreement but retained the consideration is inartistic. It is apparent that the complaint seeks to avoid the. agreement because of fraudulent inducement, to retain the consideration, and to recover damages. The answer asserts the validity and effect of the release, and it would seem that whither or not plaintiffs are successful on the merits in the action, the $10,000 may be retained. Affirmance, as above, is proper regardless of whether or not section 112-g of the Civil Practice Act is applicable to this case. Hagarty, Acting P. J., Carswell, Adel and Nolan, JJ., concur. [See post, p. 934.]