
    LEVIN et al. v. SWEET.
    (Supreme Court, Appellate Division, Second Department.
    November 24, 1911.)
    Fraud (§ 13) — Fraudulent Representations — Falsity and Knowledge Thereof.
    Defendant, in an action for damages for fraud, though mistaken in his opinion as to the ownership of the partitions which were sold by him to the plaintiff, but who accurately stated the facts as to their purchase, was not liable for false representations as to ownership.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.]
    Appeal from Municipal Court, Borough of Brooklyn, Fifth District.
    Action by Samuel Devin and another against Elbert W. Sweet. From a judgment of the Municipal Court in their favor, plaintiffs appeal. Affirmed.
    Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
    Max Schleimer, for appellants.
    C. E. Hunter, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The only criticism to be made upon this judgment is that the trial justice should have dismissed plaintiffs’ complaint, instead of giving them judgment for the sum of $55. Plaintiffs were not prejudiced by this error, and defendant does not appeal.

The action was brought for damages by reason of the alleged fraud and deceit of defendant. The evidence wholly fails to establish any statement of fact made by the defendant with knowledge of its falsity or with intent to deceive the plaintiffs. It probably was the fact that defendant was mistaken in his opinion as to the ownership of the partitions which were sold to the plaintiffs. But he clearly and accurately stated the facts as to the purchase and installation of the partitions, and showed the attorney for the plaintiffs the lease between himself and the owners of the property. "One who neither withholds nor misstates the facts cannot be adjudged guilty of fraud, simply because the courts finally decided the law to be other than he claimed it to be.” Amherst College v. Ritch, 151 N. Y. 282, 322, 45 N. E. 876, 886 (37 L. R. A. 305).

The judgment of the Municipal Court should be affirmed, with costs.  