58 N.Y.S. 1032 | N.Y. App. Div. | 1899
This action was brought to recover damages for deceit, and was based upon certain representations made to the plaintiff by the vice-
One Nicklass, who was in the employ of the defendant, had the legal title to a house and lot, No. 385 West End avenue, in the city of New York, but such title was held by Nicklass for the benefit of the defendant, who was the equitable owner of such property. The plaintiff had his attention called to this house by one Bennett, a real estate broker, and went with Bennett to the house to examine it. While there he noticed an excavation in the cellar with a little water in it and inquired of the caretaker of the house what that water was there for ? He was told that it was the sweepings of the cellar; that they had that day or the day before cleaned the cellar and had swept the water into that excavation. The plaintiff subsequently negotiated with a Mr. Currier, who was the vice-president of the defendant, which resulted in a contract for the purchase of the house by the plaintiff for the sum of $23,000. It appeared that at the first interview between the plaintiff and Currier, the plaintiff asked Currier whether they had had any trouble with water in the cellar. In reply to that Currier said : “No, not that he knew of. He never heard of any water in the cellars — especially in that particular house. They did have trouble in the corner house, but not in that house. The trouble in the corner 'house was remedied by their building a fountain-head.” After this conversation there were negotiations between the parties as to the price. The plaintiff finally offered Currier $23,000 for the house, which was accepted. At this interview plaintiff said to Currier: “ I would take the house, but I wanted a couple of days to investigate it;” stating that he had only been in the house once or twice; that he only looked at it superficially and wanted thoroughly to investigate the cellar in reference to a report about the water being in it. In reply to that, Currier said: “ In reference to the cellar of that particular house, that cellar is as dry as a nut. There never was any trouble with the cellar. We never had any trouble with water in it whatsoever, and that particular cellar is as dry as a nut.” On cross-examination, the plaintiff, in repeating this occurrence, testified : “ When we settled upon the price of the house, I asked him particularly, I wanted a
The trial judge dismissed the complaint. The action being for deceit, it was essential that the plaintiff should prove facts from which the jury could And that the statements made by the defendant
There was also evidence to sustain a finding of the jury that this statement was made with intent to deceive. The statement of the existence of this particular condition was made in answer to a statement by the plaintiff that he would take the house, but wanted two or three days to investigate the condition of the cellar, as to whether it was wet or dry. In answer to that statement, Currier made the
It is claimed, however, by the defendant that as the plaintiff had-an opportunity of examining the house, he was bound to investigate it himself and not rely upon representations of the defendant or its. agents. But in this case the plaintiff proposed to make such an investigation and 'was prevented by the express declaration of the defendant’s representative that such an investigation was unnecessary because, as a fact, the cellar was dry. Here the false representation of the defendant was designed to and did prevent the plaintiff from making an investigation which would have revealed the defect in the house. Under such circumstances, it certainly does not lie in the mouth of the defendant to- say that the plaintiff, notwithstanding the defendant’s representation, should have made the investigation which would have shown the representations to be false.
It follows that the dismissal of the complaint was wrong, and that
O’Brien, Rumsey and McLaughlin, JJ., concurred..
Judgment reversed, new trial ordered, costs to appellant to abide event.