
    Maria Thornton, Executrix, et al., etc., Res’pts, v. Isaac Harris, Phœbe Stilwell, Executrix, et. al., etc., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Fraud—What sufficient evidence of.
    Where the defendants who owned a stage route which they sold to plaintiff’s testator, represented that the route was a good paying one, that the reason for the sale was the sickness of one of the owners, that the horses and the stages were good, and the purchasers went to the stable and the horses looked well and they had seen them in the street and they seemed to be in excellent condition. And the defendants assured the purchasers that the route paid nicely, clearing itself all the time. When in fact, the horses were poor and some diseased, the good ones having been borrowed, and the route was a non paying one, etc. Held, that there was sufficient to show fraud.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the circuit court held in Kings county and from an order denying a motion for a new trial made on the ground that the verdict was excessive and on exceptions and on all the grounds mentioned in Code Civil Procedure, § 999.
    
      A. W. Bailey, for app’lts; Abram H. Bailey, of counsel; Anthony Barrett, for res’pts.
   Barnard, P. J.

Applying the rule which governs the consideration of the facts upon appeal, this case shows a very strong case of deception and fraud. Harris and Still - well owned a stage route in Brooklyn, and Styles was their employee in its management. Styles applied to the plaintiff’s testator to purchase the property, and in the evening brought Harris, one of the partners. The two represented that the stage route was a good paying one; that the reason for their wish to sell was the sickness of one of the partners, Stillwell; that the horses numbered about forty, and the stages sixteen, and that the stock was all good. The purchasers went to the stable and the horses looked well, and he had seen them in the street, and they seemed to be in excellent condition. Before the purchase was concluded the other partner, Stillwell with "Harris and Styles had an interview with the deceased, and Stillwell appeared at the interview with a “ big coat ” on; he said he should have to go south. At this interview Stillwell made substantially the same assurances. The route paid nicely, clearing itself all the time.” The sale was completed and it appeared that the horses which appeared so well were borrowed from another stable owned by Harris & Stillwell. That the horses belonging to the route in question were poor. Some were diseased and had to be killed to prevent contagion. The stock was old and dilapidated, and the route was a non-paying one. Stillwell did not go south. The case then shows false representations and false appearances calculated to deceive, "caused by the defendants. The vendors falsely represented the facts in respect to the route. They must have known that it was warranted by the true state of the case. The placing of good horses so as to cause the belief that they were included in the sale, was in its effect calculated to deceive, and was without doubt so intended. The reason given for the sale was probably not true, at least the jury could have so found.

There is nothing therefore in the case which calls for a reversal of the judgment.

Judgment affirmed with costs.

Pratt and Dykman, JJ., concur.  