
    Miller v. Curtiss.
    
      (Superior Court of New York City, General Term.
    
    March 2, 1891.)
    Deceit—Evidence of Fkaud.
    In an action to recover the amount paid defendant for shares of stock, which plaintiff alleged he was induced to purchase relying upon the false representations of defendant, plaintiff testified that defendant represented the company to be prosperous, and that there was no stock for sale, and defendant would not part with his stock, but would procure stock of A. for plaintiff, to which plaintiff acceded, whereas the company was not prosperous, had stock for sale, and the stock sold plaintiff was in fact defendant’s stock. Meld, that it was error to dismiss the complaint for want of evidence of fraud.
    Appeal from special term.
    The action was brought to recover the amount paid defendant for 15 shares of stock of the Stead Boiler Company, which plaintiff claims he was induced to purchase by the false and fraudulent statements of defendant, upon which he relied. At the trial plaintiff testified the defendant represented the business of the company—a new concern—as very hopeful, saying there would be a hundred per cent, dividends declared; that there was no stock for sale, and defendant would not sell his shares, but that one Allen had bought 30 shares, which he wished to sell, and defendant would get them for plaintiff; that thereupon plaintiff said he would take 15 of those shares, and a friend would take the other 15; that the shares so sold were in fact defendant’s shares; and that at the time the company had stock for sale; and that the business was not and never had been prosperous; and that plaintiff relied upon defendant’s representations, and would not have purchased the stock had he known of their falsity. At the close of plaintiff’s testimony the court dismissed the complaint, and, plaintiff’s motion for a new trial having been denied, he appealed.
    Argued before Sedgwick, C. J„ and Tkuax and Dugko, JJ.
    
      Marshall P. Stafford, for appellant. Leavitt & Keith, for respondent.
   Dugro, J.

Appeal from a j udgment and an order denying a motion for a new trial. Plaintiff brought his action to recover the amount paid defendant for 15 shares of the Stead Boiler Company. He claims to have been induced to purchase the stock by false and fraudulent statements of defendant, upon which he relied. The dismissal of the complaint was error, for there was evidence in the case from which a jury could properly conclude, that certain statements as to existing facts set forth in the complaint as having been made by defendant were false, and made by the defendant with intent to deceive, and that the plaintiff was deceived by them, and induced to purchase the stock in question. The existence of this evidence was sufficient to require the submission of the case to the jury. An application of the law as stated in Conkey v. Bond, 36 N. Y. 427, to the facts of this case, requires for another and a different reason the disposition made of this appeal. The judgment should be reversed, and a new trial ordered, with costs to abide the event.  