Cowart v. Lang

252 A.D. 720, 298 N.Y.S. 875, 1937 N.Y. App. Div. LEXIS 5877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1937
• Status: Published

Opinion

Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event. Memorandum: We cannot say from the trial court’s charge that in reaching its verdict the jury may not have included in its award to plaintiff the “ finance charge ” which was the consideration for the privilege of deferring payment of the. purchase price and thus was an accommodation or benefit to the plaintiff and not a proper element of damage. If fraud is proved the rule by which the amount of damage is to be fixed is indemnity for actual pecuniary loss resulting directly from the wrongful act. {Ochs v. Woods, 221 N. Y. 335, 340, 341; Hotaling v. Leach & Co., 247 id. 84, 87, 88.) Such damages are established by proving the difference between “ the value of that with which plaintiff parted and what was the value of that which he received.” (Ochs v. Woods, supra, 341.) All concur. (The judgment is for plaintiff in an action to recover damages for fraud and misrepresentation in the sale of an automobile.) Present —■ Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.