
    W. H. Haydn Miller, App’lt, v. William H. Curtiss, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed March 2, 1891.)
    
    Fraud—Evidence.
    In an action to rescind a purchase of stock and to recover the sum paid thereon upon the ground that it was induced by false representations, there was evidence that defendant had falsely represented that the company’s business was prosperous, that he had no stock to sell, but would obtain some for plaintiff from-another person, and that in fact the stock sold to plaintiff was defendant’s stock. Held, that there was evidence from which the jury might find fraud, and that a dismissal of the complaint was error.
    Appeal from judgment dismissing the complaint, and from order denying motion for a new trial.
    Action-to recover the sum paid to defendant for certain stock, which plaintiff claimed he was induced to purchase'by the falso representations of defendant. He testified that defendant stated that the business of the company was hopeful; that no stock was. for sale, and he would not sell his, but could procure some from one Allen; that plaintiff took fifteen shares of such stock; that the business of the company was not prosperous; that there was stock for sale, and that the stock defendant delivered to him was. his own stock.
    
      Marshall P. Stafford, for app’lt; Leavitt & Keith, for resp’t.
   Dugro, J.

Appeal from a judgment and an order denying a motion for a new trial.

Plaintiff brought this action to recover the amount paid defendant for fifteen 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.

Sedgwick, Ch. J., and. Truax, J., concur.  