General

Frances Dawn, Respondent, v. Betty S. Kelland et al., Appellants

271 A.D.2d 998·New York Supreme Court, Appellate Division·1947·NY

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Opinion

Frances Dawn, Respondent, v. Betty S. Kelland et al., Appellants. [MAJORITY] Since the demised premises may need to be used as a dwelling as part of their use for a kindergarten boarding school, the question whether the latter was the exclusive purpose of the letting is left to the trial. (Of. Byrnes V. Balcom, 265 App. Div. 268, affd. 290 H. Y. 730; Bobitzek Investing Go. V. Colonial Beacon Oil Co., 265 App. Div. 749.) The second cause of action charging defendants with damages for fraud is regarded as alleging an affirmative misrepresentation that the premises could be used for a kindergarten boarding school with knowledge that such use was prohibited by the local zoning ordinance. So construed, the complaint alleges more than concealment of a material fact by defendants. Order unanimously affirmed, with $20 costs and disbursements. Present — Martin, P. J., Glennon, Dore, Cohn and Van Voorhis, JJ.