Galusha v. Hughes , 162 A.D. 933 ( 1914 )

Judgment reversed and new trial granted, with costs to the appellant to abide event. Held, that the bringing of the action and the other circumstances are sufficient to establish a repudiation by the plaintiff of the contract on the ground of fraud. (Gould, v. Cayuga County Nat. Bank, 86 N. Y. 75; Davis v. Rosenzweig Realty Co., 192 id. 128; Cox v. Stillman, 133 App. Div. 433.) All concurred, except Lambert, J., who dissented upon the ground that there is a failure of proof to establish fraud as a basis of rescission.