
    W. H. HAYDN MILLER, Appellant v. WILLIAM H. CURTISS, Respondent.
    
      Action to recover damages for false and fraudulent representations in regard to shares of capital stock.
    
    
      Held, that the dismissal of the complaint on the trial of this action 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 the plaintiff, and thereby plaintiff was deceived and induced to purchase the stock in question. The evidence and the case should have been submitted to the jury.
    
      The evidence that the respondent undertook to buy for the appellant certain stock owned by one Allen, thus acting as the agent of appellant, and the subsequent sale of his own stock to appellant, was a fraud in law for which the appellant could rescind and recover the money paid, furnishes another sound reason for the reversal of this judgment in accordance with the case of Conkey v. Bond, 36 N. Y. 427.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided March 2, 1891.
    Appeal from a judgment entered upon the dismissal of the complaint at the trial term, and from an order denying a motion for a new trial upon the minutes of the trial judge.
    
      Marshall P. Stafford, attorney and of counsel, for appellant.
    
      Leavitt & Keith, attorneys, and John B. Leavitt of counsel, for respondent.
   By the Court.—Dugro, J.

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.

Sedgwick, Ch. J., and Truax, J., concurred.  