Bianchi v. Markese

276 A.D.2d 1048

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1950
• Status: Published

Opinion

Memorandum: In this action for damages for fraudulent representations to a purchaser regarding the condition of a house by the owner and seller, plaintiff proceeded upon an erroneous measure of damages. At the close of the evidence defendant’s counsel moved for a nonsuit basing his motion principally upon plaintiff’s failure to use the proper measure of damages. Plaintiff’s counsel then moved for a reopening and for a reasonable adjournment for the purpose of bringing in additional evidence so as to comply with the rule as it was stated by the Trial Judge. We feel that the Trial Judge’s denial of that motion was an improvident use of discretion, necessitating a reversal of the judgment and orders and the granting of a new trial. All concur. (The judgment appealed from dismisses plaintiff’s complaint in an action for fraud and misrepresentation in purchase of realty. The orders granted defendant’s motion for a nonsuit, denied plaintiff’s motion to reopen, and denied plaintiff’s motion for a voluntary nonsuit.) Present —Taylor, P. J., MeCurn, Love, Vaughan and Kimball, JJ.