Horgan v. Frenkel, Kovac & Co.

161 Misc. 493, 293 N.Y.S. 264, 1936 N.Y. Misc. LEXIS 1635

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 23, 1936
• Status: Published

Opinion

Per Curiam.

It was error to receive as evidence over defendant’s objection quotations reported by a quotation service bureau rendering its reports only to its broker subscribers, as same were not admissible under section 375-a of the Civil Practice Act. Although the witness may be competent to testify, proof of market value or in its absence fair value must be given as required by the rules of evidence. If the rule of caveat emptor applies but facts showing fiduciary relationship exist, same should be alleged in the complaint, to take the cause out of the rule. The answer here alleged defendant was entitled to commission under the agreement of sale.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Lydon, Levy and Hammer, JJ.