Carrington v. Miller

124 Misc. 169 | N.Y. App. Term. | 1924

Per Curiam:

Plaintiff claims defendants’ employee induced him by false and raudulent representations to buy certain shares of stock. When >laintiff discovered the fraud, he asserted, he repudiated the purbase, offered to return the stock and demanded the return of his noney. Defendants refused such return and this action was instituted to recover the money paid for such stock. Before ilaintiff could recover he had to establish false representations known 0 be false by the defendants intended to influence the plaintiff and rhich came to plaintiff’s knowledge and in reliance upon which he 1 good faith parted with his property. The plaintiff offered proof hat he relied on the defendants’ representation as to the trading nd listing of the stock and was induced because of them to make íe purchase in question, but the evidence was excluded by the ourt.

Direct examination by plaintiff’s counsel: “ Q. When he (meaning Melhado) made the statement to you that the stock was listed on the New York Stock Exchange and was going to be traded in on the following morning, did you telephone him that you relied upon this statement in giving him the order? A. I absolutely did. Defendants’ counsel: I object, and move to strike that out as a conclusion. The Court: Yes, strike it out. Plaintiff’s counsel: Which one, your Honor? The Court: The last statement of the witness. Plaintiff’s counsel: I respectfully except. * * * Q. Had the statement not been made to you that this stock was going to be listed on the New York Stock Exchange the following morning for trade, would you have given the order for the purchase of this Daniel Boone stock? Defendants’ counsel: I object to that question as calling for a conclusion. The Court: Objection sustained. Plaintiff’s counsel: Exception. * * * Q. Would you have given the order to Mr. Melhado for the purchase of the stock had he not made these statements, that the stock would be listed on the New York Stock Exchange and traded in on the following morning? Defendants’ counsel: The same objection. The Court: Objection sustained. Plaintiff’s counsel: Exception.”

We regard the exclusion of this evidence as prejudicial error necessitating a new trial. The plaintiff in an action of this character cannot recover unless he proves reliance, and the effect which the representations had upon plaintiff’s mind is the most direct prooi of reliance. This is an exception to the general rule of evidence that a party may not testify as to mere mental operation.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Wagner and Levy, JJ.