FIRST DEPARTMENT, MARCH TERM, 1875. "Once In the same case, in the Supreme Court, CowEN, J., says: establish that in all matters of pecuniary dealings, in all matters of contract, a man has a legal right to demand that his neighbor shall be honest, and the consequence follows, viz.: If he be drawn into. a contract by frand, this is an injury actionable per se. Indeed, it would not be difficult in all such cases to show the degree of actual damage. The time of the injured party has been consumed in doing a vain thing, or one comparatively vain; and time is money. It would not be difficult to satisfy the more ancient and strict rule of the Year Book,* viz.: "That there must not only be a thing done amiss but also damage, either already fallen upon the party or else inevitable. (Waters v. Freeman, Hob., 267.) Fraud is a thing grievously amiss, and above all, odious to the law; and fraud in a contract can hardly be conceived without being attended with damage in fact." * * * When Whitney v. Allaire was before the Supreme Court after the second trial, the court said, JEWETT, J., delivering the opinion (speaking of frauds perpetrated by the vendor): "A return of the property to the vendor, or an offer to return, is in no case necessary, except to enable the vendee to withhold or recover back the price. In all cases of fraud, the vendee, who alone has the right of disaffirmance, may remain silent, and bring his action to recover damages for the fraud, or may rely on it by way of defense to the action of the vendor, although there has been full acceptance by him, with knowledge of the defects of the property. An affirmance of the contract by the vendor, with such knowledge, merely extinguishes his right to rescind the sale. His other remedies remain unimpaired. The vendor can never complain that the vendee has not rescinded." It is not easy to see why the principle of these cases is not applicable to the case under consideration. The plaintiff by a gross fraud induced the defendants to reinstate a contract, which had terminated by its express terms, on payment of a small sum of money. The contract subjects the defendants to pay $3,000; for that sum the plaintiff sues. The defendants set up the fraud as a defense. Their right of action for the fraud is perfect, and the measure of their damages would be the amount of * 19 H. 6, 44, pl. 92. † 4 Denio, 554, 558, and cases there cited; and see Muller v. Eno, 4 Kernan, 597. FIRST DEPARTMENT, MARCH TERM, 1875. the obligation fraudulently obtained, less, perhaps, the premiums paid. * But their right to defend is as complete as their right to sue, and the measure of damages is the same. On what ground is that defense to be cut off? Certainly, not on the ground that a rescission was necessary, for that was only essential to a particular form of remedy. Certainly, not on the ground of ratification, for nothing of that kind can be predicated of a distinct refusal to pay the fraudulent obligation, followed almost immediately by a suit and a plea of the fraud in bar. It is not a case where the parties, after knowledge of fraud, have continued to receive subsequently accruing premiums, and thereby, in continuing the contract with knowledge, have estopped themselves from alleging the fraud. It is a case rather, where the relations have not been changed since the discovery of the fraud, and where it is absurd to suppose that, with knowledge of the fraud, and while refusing to pay, the defendants meant to ratify an obligation for $3,000, by retaining seventy-eight dollars. If the policy had been negotiable within the law merchant, and had been assigned by plaintiff to a bona fide holder, within the well established rule, an action would have been sustained against plaintiff at the time the fraud was discovered, in which the measure of damages would have been the amount of the assurance (less, perhaps, the premium paid).† And the only reason that can be assigned why the action would not lie against plaintiff upon the same facts, at the same time and for the same amount of damages, is, that the defense to the policy would be perfect, and therefore there could be only nominal damages in such a suit. ‡ But if it be true that a rescission was necessary in order to establish the defense, we are of opinion that sufficient was done to accomplish that purpose. This action was brought very speedily after the right of action accrued under the policy. A plaintiff, to rescind, has the opportunity to take the necessary steps before action, because the time of commencing suit is within his control. * Decker v. Matthews, 2 Kern., 313; Ingalls v. Lord, 1 Cow., 240. +Decker v. Matthews, 2 Kernan, 313; Murray v. Burling, 10 J. R., 172; Evans v. Kymer, 1 Barn. & Adol., 528. Cases last cited. FIRST DEPARTMENT, MARCH TERM, 1875. But even he need not offer to return, where what he has received is of such a nature that he can bring it into court and cancel or tender it, so as effectually to put the defendant in a position equally as good as an offer before suit could have done. * In Ladd v. Moore, the plaintiff had received a note and money, but he was not required to bring in the money at the time of bringing in the note on the trial. There is good reason for holding that a defendant who is sued by a party who has fraudulently obtained his obligation, is not held to any sharp rule of return, or offer to return, before suit brought. Such a rule would be highly advantageous to sharpers, and severe oftentimes upon their victims. In such a case, if the suit be brought soon after the right of action accrues, it ought to be enough that the defendant offers to replace the party in the position in which he was when he committed his fraud. The defendants, before issue, offered judgment under the Code for the full amount of the premiums and interest, with costs of the action. This was, under the circumstances, we think, a compliance with the spirit of the rule. It ought to be so held, especially in a case where it is apparent that no offer would have been accepted whenever made. The rule itself was established to promote justice, and not to enable fraud to consummate its purposes. The application of it in this case in the strictness claimed, is to pervert the rule into a handmaid of iniquity. The judgment should be reversed, and a new trial ordered with costs to abide the event. DANIELS, J.: I concur on the ground that the policy was void, on account of the fraud shown by the evidence. BRADY, J., concurred. Judgment reversed and new trial granted, costs to abide event. * Ladd v. Moore, 3 Sandf., 589; Nichols v. Michael, 23 N. Y., 264. FIRST DEPARTMENT, MARCH TERM, 1875. 3 736 88 392 ! ABRAHAM HEWLETT, APPELLANT, V. SAMUEL WOOD AND THE SAME, APPELLANT, v. THE SAME, RESPONDENTS. Chap. 238 of 1853-issue of fact to be tried by jury in cause determined at Special Term Supreme Court-jurisdiction of — Special Term cause not necessarily an equity cause. In an action brought under the provisions of chapter 238 of 1853, the cause is prop- APPEAL from an order directing that issues be settled to be tried by a jury at circuit, and from an order settling such issues. E. T. Schenck, for the appellants. Abraham Wakeman, for the respondents. DAVIS, P. J.: The first of these appeals is from an order of the Special Term, directing that issues be settled to be tried by a jury at circuit, and that the verdict of the jury thereon be certified to the Special Term for further proceedings in the action. The second is from the settling of the issues upon the questions proposed by both parties. The action is brought under the provisions of chapter 238 of the Laws of 1853, which provide that heirs claiming by descent from an ancestor who died in possession, notwithstanding any apparent devise, may, whether they be in possession or not, prosecute an action for partition, provided they shall allege and establish in such action that the apparent devise is void.* The point made on the part of the appellants, is, that *Session Laws of 1853, p. 526. FIRST DEPARTMENT, MARCH TERM, 1875. this action is one purely at law, in which all the issues joined by the pleadings go of course to the circuit for trial, there to be tried, and the whole controversy disposed of, as are ordinary issues at law; and that the Special Term of the court, as such, has no authority to try the action, or to make any order touching the issues therein. We think this question ought to be regarded by us as res adju dicata. In an action for the same purpose, brought by the same plaintiff against the same defendants, and in which the same issues were made by the pleadings, the trial was noticed for a Special Term of the second district. A motion was there made for the settlement of issues to be tried by a jury, and denied by the court. On appeal to the General Term, it was held, TALCOTT, J., delivering the opinion, that the motion should have been granted by the Special Term, and the court reversed the order and directed that issues be settled in the usual manner, and tried by a jury.* This case, we think, must be regarded as settling that the action was properly on the Special Term calendar, to be disposed of by that court with the aid of a verdict of a jury to determine the questions of fact necessary to establish the title at law; and that the proceedings in partition, after such title should be established by a verdict, were properly to be conducted by the court sitting at Special Term. We think this view a correct one. All the powers conferred by the Revised Statutes, in proceedings for the partition of lands, upon the Supreme Court, and upon the Court of Chancery, are now concentrated in the Supreme Court. The proceedings under the statute, when brought in the Supreme Court, were to be commenced by petition, to be presented to the court on some certain day in term," and to be "served forty days previous to such term," on all the parties interested in the lands; upon which an order was to be made upon the parties interested to appear and show title, etc., and to answer the petition, and of the issues joined, if any were joined, they were to be tried as issues in personal actions, and after such trial the court was to ascertain from the verdict of the jury, and declare the rights, titles, and interests of the parties to such proceedings, and give judgment *Hewlett v. Wood, 8 N. Y. S. C. R. (1 Hun), 478. +2 R. S., 316, title III, "Of the partition of lands owned by several persons." HUN-VOL. III. 93 |