Abraham Jacobs, Respondent, v. Samuel Tannenbaum, Appellant; Gertrude Suskind, Respondent, v. Samuel Tannenbaum, Appellant

Abraham Jacobs, Respondent, v. Samuel Tannenbaum, Appellant. Gertrude Suskind, Respondent, v. Samuel Tannenbaum, Appellant. [MAJORITY] Order of Appellate Term affirming judgments of the City Court of the City of New York, Borough of Richmond, affirmed, with costs. The defendant purchased certain property, paying therefor in part in cash and in part by giving his promissory notes. Later, claiming damages for fraud, he recovered judgment against the vendor. He did not rescind, did not return or offer to return the property, and did not ask that the notes be surrendered or canceled. The election to recover the judgment for damages affirmed the contract and established the validity of the notes. (Vail v. Reynolds, 118 N. Y. 297; Merry Realty Co. v. Shamokin & Hollis R. E. Co., 230 id. 316.) There is now no defense in these actions brought by the holders of the notes, whether they paid value for them or otherwise. The assignment or transfer of the notes occurred before the defendant obtained judgment for damages against Sadof, the vendor of the property, and that judgment is not a valid set-off against the notes previously transferred in apparent good faith and for value. Kapper, Hagarty, Scudder and Davis, JJ., concur; Lazansky, P. J., dissents and votes for reversal and a new trial on the ground that there was a question of fact to be determined by the jury: Were plaintiffs the actual holders of the notes or did they really represent Sadof? In the latter event there would be a right of set-off.