Pisane v. Pisane

272 A.D.2d 770

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1947
• Status: Published

Opinion

In an action to set aside a deed to real property on the ground that its execution was fraudulently procured, interlocutory judgment in favor of plaintiff, after trial by the court without a jury, reversed on the law and the facts, and a new trial granted, with costs to abide the event. For the purposes of a new trial all findings of fact and conclusions of law are reversed and disapproved. The theory of the complaint is that the plaintiff executed the deed in question because of the misrepresentation of the defendant Neil Pisane that it was an instrument of another character. The proof is to the effect that the deed was not signed by him The pleadings were not conformed to the proof. Furthermore, it was error to receive in evidence plaintiff’s Exhibit 5, and the proof that it was a forged instrument. The provisions of section 347 of the Civil Practice Act do not operate against any of the witnesses in respect of the matters upon which it was sought to examine them. It may not be said that these errors .may not have been influential in producing the judgment from which the appeal is taken. For that reason and in the interest of justice a new trial should be had. Hagarty. Acting P. J., Carswell, Johnston and Adel, JJ., concur; Nolan, J,, concurs in the result.