
    Pelly, Respondent, v. Robinson, Appellant, et al.
    
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    Appeal from circuit court, Hew York county.
    Action by Herbert Cecil Pelly against Andrew J. Robinson and others.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      Edward S. Clinch, for appellant. Birdseye, Cloyd & Bayliss, (Lucien Birdseye, of counsel,) for respondent.
   Daniels, J.

This case no otherwise differs from the two which have already been considered (15 N. Y. Supp. 915, 964) than in the amount of stock purchased by the defendant, for which his three promissory notes were delivered to Griffiths, and a part of the purchase price paid in cash. Two of the notes were paid prior to the time when it is alleged that the fraud by which the defendant was induced to execute and deliver them was discovered; and by reason of the fraudulent representations it is alleged that the stock of the company was utterly worthless, and the answer contained an offer to surrender it up, and demanded a judgment for a return of the note. The same deposition was read in evidence upon the trial of the plaintiff, and by reason of its effect the court excluded all the proof proposed to be given by the defendant to establish the existence of the fraud, and the allegation that he was deceived thereby, and induced to deliver this and the other notes to Griffiths. The exclusion of that evidence, for the reasons already given, was erroneous, and the judgment should be reversed, and a new trial ordered, with costs to the defendant to abide the event.  