Borenstein v. Spiegel

220 A.D. 231, 221 N.Y.S. 159, 1927 N.Y. App. Div. LEXIS 9276

Opinions

Per Curiam.

The plaintiff’s evidence was inexactly and inartificially adduced. It is obscure as to whether the plaintiff relied on the representations of Spiegel, and likewise as to whether the action was in rescission or for damages, in which latter event clearer proof should have been made as to the value of the stock. Nevertheless we think in the interest of justice a new trial should be ordered. It is inferable from the testimony that the purchase was made directly from the defendant in reliance on the misrepresentations, and in that event proof of scienter would be unnecessary in an action based on rescission.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.; Finch, J., dissents in an opinion in which Merrell^ J., concurs.