Rosen v. Duggan's Distillers Products Corp.

23 A.D.2d 635 | N.Y. App. Div. | 1965

Judgment unanimously reversed on the law and on the facts and new trial granted, with $50 costs to appellant to abide the event. The verdict of the jury was contrary to the weight of the evidence. A sharp issue of credibility was presented by the testimony of plaintiff and that of the president of the defendant corporation. So far as the record reveals plaintiff conducted no pretrial examination of this corporate officer. In any event, plaintiff failed to produce corroborative proof available to him. One of the crucial issues was whether or not plaintiff had tendered the alleged purchase price of the stock. He testified that a check for $15,000 had been obtained from his brother-in-law — his attorney of record herein — and tendered to defendant. Neither the cheek nor any other corroborative proof was offered. In addition, there was a complete absence of competent proof of damage. The measure of such damage would be the difference between the market price of the shares of stock at the time fixed for delivery and the option price (1 New York Law of Damages, § 284). Plaintiff’s testimony was that at the time the option was given the per share price was “ anywheres between 25 and 50 cents” and at some unspecified later date “It went as high as $1.” The jury was instructed that their verdict should be for $85,000 “or for a lesser amount ”. The finding that plaintiff had been damaged in the sum of $25,000 was based of necessity upon speculation and not proof. Concur — Botein, P. J., Rabin, McNally, Eager and Bastow, JJ.