Opinion
March 31, 1952.
Present — Nolan, P.J., Carswell, Johnston, Wenzel and Schmidt, JJ.
In this action by a vendee of certain real property located in Belle Harbor, County of Queens, against the vendor, to recover the amount paid on account of the contract of sale, on the ground of alleged false representations that the premises were free of termites, a trial of only defendant's counterclaim for specific performance was had, in pursuance of an order made on motion of defendant, which resulted in a judgment granting defendant specific performance and dismissing plaintiff's complaint. The appeal is by plaintiff from the judgment, and her notice of appeal states that she will bring up for review three orders, (1) the order directing the separate trial of the counterclaim, made April 13, 1950; (2) an order made September 25, 1950, referring to an Official Referee the taking of proof on matters of financial adjustments connected with the closing of title, which order was made after the conclusion of the trial, and (3) the order made March 19, 1951, modifying and confirming the report of the Official Referee. The notice of appeal further states that there would also be brought up for review the "determination" made by the trial court at the conclusion of the trial, the findings of fact and conclusions of law, and the report of the Official Referee. The orders of April 13, 1950, and September 25, 1950, are unanimously affirmed, without costs. The order of March 19, 1951, is modified, as to subdivision numbered 6 of the first ordering paragraph thereof, by inserting between the words "price" and "recovering" the following: "and the interest of $383.14 on the sum paid for amortization"; by striking out the words "with interest" where they appear immediately after the word "mortgages"; by striking out the following: "$4,032.13 ($3,648.99 plus $383.14)," and substituting in place thereof: "$3,648.99"; by striking out the following: "or $3,648.99," where it appears immediately after the words "same period," and substituting in place thereof the following: "with interest, amounting to $4,032.13 ($3,648.99 plus $383.14)"; and by striking out the following: "$13,857.74 ($10,208.75 plus $3,648.99)," and substituting in place thereof the following: "$14,240.88 ($10,208.75 plus $4,032.13)." The said order is further modified by striking from the second ordering paragraph the following: "with interest, $4,032.13, or, in all, a total of $12,469.11," and substituting in place thereof the following: "$3,648.99, or, in all, a total of $12,085.97." As so modified, the order is unanimously affirmed, without costs. The judgment is modified on the law and the facts, as to the second decretal paragraph thereof, by striking out the following: "Twelve Thousand Four Hundred Sixty Nine and 11/100 dollars ($12,469.11)," and substituting in place thereof the following: "Twelve Thousand Eighty-Five and 97/100 dollars ($12,085.97); by striking out the figure "$4,032.13", and substituting in place thereof the figure "$3,648.99"; and by striking out the following: "with interest" and "with interest from November 17, 1950". As so modified, the judgment is unanimously affirmed, without costs. The appeal, insofar as it is from the "determination" of the trial court, the findings and conclusions and the referee's report, is dismissed, without costs. Fraud will vitiate any contract, regardless of the fact that the contract contains a provision to the effect that no representations have been made as an inducement to enter into the contract and that the party who claims the fraud entered into the contract with knowledge of the condition of the subject matter of the contract and agrees to accept the same "as is". ( Bridger v. Goldsmith, 143 N.Y. 424; Ernst Iron Works v. Duralith Corp., 270 N.Y. 165; Angerosa v. White Co., 248 App. Div. 425; Jackson v. State of New York, 210 App. Div. 115.) However, we are of opinion that the findings of the trial court to the effect that the defendant did not make the representations upon which plaintiff bases her claim of fraud are supported by the record. The interest which respondent relinquished by electing to retain the net profits is not limited to what is stated to be the balance of the purchase price, but includes interest on the amortization payments.