Opinion
May, 1922.
We are of the opinion that the plaintiff intends to allege in her complaint a cause of action to avoid the contract of sale for fraud in inducing the plaintiff to make it and to recover the consideration paid, as money had and received. ( Vail v. Reynolds, 118 N.Y. 297; Bowen v. Mandeville, 95 id. 237; 35 Cyc. 606.) In this view the entire complaint should be redrafted. ( Gutta-Percha Rubber Mfg. Co. v. Holman, 150 App. Div. 678. ) The complaint should contain a plain and concise statement of the facts showing the fraudulent representations of the defendant and the plaintiff's reliance thereon, her election to rescind the contract because of the falsity of the representations, and the return of the property, without unnecessary repetition and without incumbering the complaint by stating the evidence or legal conclusions. All concur. Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to serve an amended complaint within ten days.