109 N.Y.S. 924 | N.Y. App. Div. | 1908
In 1893 the plaintiff owned a lot of land in the city of Brooklyn and the defendant Catherine E. Pierce had a lease of a livery stable in the city of New York and owned its good will, stock, fixtures and contents. In consideration of $11,000 Mrs. Pierce transferred such business, including an assignment of the lease, to plaintiff’s husband, James F. Guilfoyle. Two thousand dollars of the consideration was paid in cash; $1,000 by the assignment of a bond and mortgage; $3,500 by a conveyance of plaintiff’s property, and the balance, $4,500, by the giving of a chattel mortgage on the property transferred. Guilfoyle continued in possession of the property transferred to him for several months, when he brought an action to rescind the contract of purchase on the ground that he was induced to make the same by false representations of the defendant Catherine E. Pierce as to what the stable was earning. In that action a receiver was appointed of the property conveyed by the plaintiff to Catherine E. Pierce, to whom, by direction of the court, Mrs. Pierce conveyed the same, to be disposed of by him as the judgment in the action might direct. Guilfoyle was defeated in his action at the March term, 1895, and his complaint was dismissed on the merits and on appeal the same was affirmed. (Guilfoyle v.
I know of no theory upon which the judgment appealed from can be affirmed. James F. Guilfoyle was the purchaser of the stable. The entire consideration was paid by him or for his benefit, and he .alone, if any one, was defrauded by that transaction. The fact that the plaintiff furnished for him a part of the consideration did not enable her to get back such consideration in case he was defrauded. He alone could maintain an action to rescind the pur
At the trial, to establish the fraud, plaintiff was permitted, against the objection and exception of defendants, to introduce in evidence a copy of a portion of a book kept by Catherine E. Pierce while she was in possession of the livery stable. This was secondary evidence. The book itself was the best evidence of its contents, and should have been produced or its non-production accounted for. When James F. Guilfoyle took possession of the stable he also took possession of the book, and at the trial of the action which he brought against Catherine E. Pierce such book was then in his possession or the possession of his attorney, and was there used. (Guilfoyle v. Pierce, 4 App. Div. 612.) What has since become of it does not satisfactorily appear. Clearly sufficient ground was not laid for introducing secondary evidence of its contents.
The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellants to abide event.
Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., concurred in result.
Judgment reversed, new trial ordered, costs to appellants to abide event.