ELECTION OF REMEDIES- CONTRACTS INDUCED BY FRAUD

In 1939, plaintiff brought an action alleging in his complaint that defendant became indebted to him on December 17, 1928, for $13,400, for money had and received by defendant to the use of plaintiff. In a bill of particulars plaintiff pointed out that the indebtedness arose from the purchase of certain bonds and the subsequent rescission of the contract of purchase prior to the commencement of this action, basing his right to rescind upon misrepresentations made by, and the fraud of, defendant in inducing the purchase of said bonds. When defendant moved for a summary judgment on the ground that an action for money had and received was barred under the six-year statute of limitations, plaintiff introduced affidavits alleging that the fraud was not discovered until March, 1938. Held, this action must be treated as one for money had and received and is therefore extinguished by the six-year statute of limitations. The question whether an action for damages due to the alleged fraud is barred by the present action is not before the court. Cohen v. City Company of New York, 283 N. Y. 112, 27 N. E. (2d) 803 (1940)