Opinion
June 16, 1952.
In an action to recover moneys paid by appellant on a contract for the purchase of unimproved real property, which contract was allegedly rescinded by her on the ground of fraud, she appeals from an order granting motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice, and dismissing the complaint. Order reversed on the law and the facts, with $10 costs and disbursements, and motion denied, without costs. In our opinion the proof submitted by appellant was sufficient to raise a triable issue of fact as to the conclusiveness of the documentary evidence relied upon by respondents, since she alleged facts tending to show that the execution of the contract by her was induced by fraudulent misrepresentations made by respondents as to its contents which, if true, would vitiate the entire contract, including the "merger" clause contained therein. ( Wiesenthal v. Krane, 226 App. Div. 82; Muller v. Rosenblath, 157 App. Div. 513; Bridger v. Goldsmith, 143 N.Y. 424; Jackson v. State of New York, 210 App. Div. 115.) Nolan, P.J., Johnston, Adel, Wenzel and Schmidt, JJ., concur.