J. Louis Bloom & Sons, Inc. v. F. G. Investing Co. 232 A.D. 762

Judgment reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event. We are of opinion that the weight of the credible evidence establishes that the plaintiff accepted the $30,000 of participating certificates in the mortgage on the Sullivan county property upon the basis of the quantity of land mortgaged, consisting of 4,000 acres, whereas the actual quantity does not exceed 3,000 acres. It is immaterial whether the defendant intended to defraud in representing the quantity of land as consisting of 4,000 acres, which representation, we conclude, the present record establishes, and that the plaintiff, in reliance thereon, accepted said certificates as part consideration for its property. (See Paine v. Upton, 87 N. Y. 327; Belknap v. Sealey, 14 id. 143.) “ An action may be maintained in equity to rescind a transaction *763which has been consummated through misrepresentation of material facts not amounting to fraud. Unlike an action at law for damages, intentional misstatements need not be proved.” (Bloomquist v. Farson, 222 N. Y. 375, 380.) (See, also, Seneca Wire & Mfg. Co. v. Leach & Co., 247 id. 1, 7; Comm. C. Corp. v. Third & Lafayette Sts. Garage, Inc., 226 App. Div. 235, 238.) We grant a new trial in this ease because there may be equities to adjust. Findings of fact numbered “ twenty-second,” “ twenty-third ” and “ twenty-fourth ” are reversed. Lazansky, P. J., Kapper, Hagarty, Carswell and Scudder, JJ., concur.