Carberry v. Flushing Asphalt Corp.

Appellate Division of the Supreme Court of New York

Carberry v. Flushing Asphalt Corp.

282 A.D. 674, 122 N.Y.S.2d 366, 1953 N.Y. App. Div. LEXIS 4637

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 19, 1953

StatusPublished

This text of 282 A.D. 674 (Carberry v. Flushing Asphalt Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carberry v. Flushing Asphalt Corp., 282 A.D. 674, 122 N.Y.S.2d 366, 1953 N.Y. App. Div. LEXIS 4637 (N.Y. Ct. App. 1953).

Pincite

Opinion

To recover on the theory of fraud for refusing to give a correct statement of account, plaintiff had the burden of showing not only that the account was wrong, but that a correct account would reveal a profit great enough for him to share in it under his contract. Whether the action sounded in contract or in tort, the measure of damage and the burden of proof would be to establish a right to a share in the profits. This is not supported in this fragmentary and confused record before us. Judgment unanimously [675]*675reversed, with costs to the appellants, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs. Present — Peck, P. J., Glennon, Cohn, Breitel and Bergan, JJ. [See post, p. 684.]

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To recover on the theory of fraud for refusing to give a correct statement of account, plaintiff had the burden of showing not only that the account was wrong, but that a correct account would reveal a profit great enough for him to share in it under his contract. Whether the action sounded in contract or in tort, the measure of damage and the burden of proof would be to establish a right to a share in the profits. This is not supported in this fragmentary and confused record before us. Judgment unanimously [675]*675reversed, with costs to the appellants, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs. Present — Peck, P. J., Glennon, Cohn, Breitel and Bergan, JJ. [See post, p. 684.]

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Bluebook (online)

282 A.D. 674, 122 N.Y.S.2d 366, 1953 N.Y. App. Div. LEXIS 4637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carberry-v-flushing-asphalt-corp-nyappdiv-1953.