Bethlehem Properties, Inc. v. Period Antiques, Inc.

231 A.D. 799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Per Curiam.

Upon the record here presented we are of opinion that the findings of the Special Term, that there was no fraudulent conspiracy or concerted action shown, are against the weight of the evidence and that the interests of justice require a new trial. The judgment, therefore, must be reversed. Inasmuch, however, as plaintiff was foreclosed in many instances from offering proof in explanation of facts and circumstances adduced by the appellant in support of its claim of fraudulent conspiracy, a new trial must be awarded. In so ordering, we deem it advisable to indicate that in our view it was more incumbent upon the respondent than the appellant to produce and call Baldwin as a witness, because of his relations with the plaintiff, its subsidiaries and some of their officers, both prior and subsequent to April 20, 1928. The situation presented in the present record is one which calls upon the plaintiff to offer the fullest explanation of the various transactions in question and the whole course of its dealings with respect to appellant’s property and its fourth mortgage on the premises subject to this foreclosure action. Particularly is an explanation required of all plaintiff’s relations and dealings with Baldwin. Neither upon the trial nor upon this appeal was sufficient effort made in this direction. The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Dowling, P. J., Merrell, Martin, O’Malley and Sherman, JJ. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Settle order on notice.