| N.Y. App. Div. | Oct 15, 1927
Judgment reversed and new trial ordered, with costs to the appellant to abide the event, upon the ground that prejudicial error was committed by the learned trial court in its charge to the jury in which it held that the “ defendant would be guilty of fraud if he willfully concealed a bona fide offer for the property in question for the purpose of obtaining a deed from the plaintiff for the latter’s interest in the property, and if, except for such concealment, this plaintiff would not have sold his interest; ” such issue not being presented by the pleadings and not within their scope. Present — Dowling, P. J., Finch, McAvoy, Martin and O’Malley, JJ.; O’Malley, J.,' dissents.