Nathan Rubin, Respondent, v. Rex Cole, Inc., Appellant

Nathan Rubin, Respondent, v. Rex Cole, Inc., Appellant. Third Department, April 30, 1941. Joseph A. Schaines [Norman W. Arnheim of counsel], for the appellant. Morris M. Oppenheim [Ellsworth Baker of counsel], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. Respondent sought rescission of a contract to purchase a mechanical cooling device, and has recovered a judgment for all payments made. There was no express warranty as to the temperature which the machine would maintain. Fraud in the making of the contract was not pleaded, proved or submitted to the jury. The machine was installed in May, 1934; payments were made for fourteen months following. Notice of rescission and to remove the property was not given until June 21, 1937. Earlier oral complaints, if found to have been made to the defendant’s selling agent and if competent, were statements in connection with requests for adjustments to and repairs of -the mechanism, and did not amount to rescission. (Sorenson v. Keesey Hosiery Co., 244 N. Y. 73, 76.) Notice of rescission was not given within a reasonable time, and no offer was made to return the property in substantially as good condition as when received. The judgment should be reversed and the complaint dismissed. (Pers. Prop. Law, § 150; Donovan v. Aeolian Co., 270 N. Y. 267; Sorenson v. Keesey Hosiery Co., supra.) The judgment should be reversed on the law, -with costs, and the complaint dismissed, with costs. Hill, P. J., Crapser, Bliss, Heffernan and Schenck, JJ., concur. c Judgment reversed on the law, with costs, and complaint dismissed, with costs.