Dougherty v. New York Central Railroad

187 A.D. 966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1919
• Status: Published

Opinion

Per Curiam:.

Defendant’s counsel may be correct in his contention that the prior negotiations and oral contract of settlement were merged in the writings and that plaintiff cannot recover upon the oral contract because he has not rescinded the written one and restored the consideration. (See Stowell v. Greenwich Ins. Co., 163 N. Y. 298; Lese v. Lamprecht, 196 id. 32; Smith v. Ryan, 191 id. 452; Whipple v. Brown Brothers Co., 225 id. 237.) We think it is unnecessary to decide that question as we are of opinion that by a liberal construction of the complaint it can be held to state a cause of action to recover damages for fraud and deceit. There was sufficient proof of such a cause of action to require the case to be submitted to the jury. While the charge did not clearly instruct the jury as to the rules of law applicable in such a case, still it was acquiesced in by counsel on both sides, and no further instructions were requested. Under the circumstances,, we think there was no error so prejudicial as to require a reversal. All concurred. Judgment and order affirmed, with costs.