Solomon v. Commonwealth Associates, Inc.

Appellate Terms of the Supreme Court of New York

Solomon v. Commonwealth Associates, Inc.

131 Misc. 43, 225 N.Y.S. 690, 1927 N.Y. Misc. LEXIS 1245

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 22, 1927

StatusPublished

This text of 131 Misc. 43 (Solomon v. Commonwealth Associates, Inc.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Solomon v. Commonwealth Associates, Inc., 131 Misc. 43, 225 N.Y.S. 690, 1927 N.Y. Misc. LEXIS 1245 (N.Y. Ct. App. 1927).

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Opinion

Per Curiam.

This action is brought to recover installment payments made upon the purchase of some lots on Staten Island, the ground of plaintiff’s rescission being that false representations had been made by defendant’s agent at the time of the sale. These representations were to the effect that a certain plot on the map shown to plaintiff had been sold to the railroad company for the purpose of the erection of a station thereon; that plaintiff purchased lots adjacent and that the representations were wholly false.

Plaintiff’s chief witness was the salesman, a former employee of defendant. After defendant had offered evidence to the effect that at the time of the sale a prospectus of defendant had been shown to plaintiff or her agent and had been carefully examined, the prospectus itself was offered in evidence but excluded. It is sought to justify this exclusion on the plea that it was a self-serving declaration and unimportant in any event. The prospectus includes a large overhead view of the property and vicinity and indicates in plain type three railroad stations in proximity to the property, but no notation whatsoever in respect of the plot alleged to have been represented as the new railroad station, and on the whole might be fairly interpreted by the jury as indicating that no such station was to be placed there.

It seems to be too plain for argument that this evidence was competent and material both as bearing on the question whether plaintiff relied on the alleged statements of the agent or not, and upon the credibility of the agent, who admitted that he had seen the prospectus, indeed copies of this document were concededly freely distributed among all the agents of the company for the use of their customers. It is clear that the exclusion of this prospectus was prejudicial to the defendant’s case, and the prejudice is accentuated by the fact that a number of questions along the [45]*45same line addressed by defendant’s counsel to the former salesman witness, were excluded, and thus the attempts of defendant’s counsel to further assail the witness’ credibility were prejudicially hampered.

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

All concur; present, Bijur, Levy and Crain, JJ.

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Per Curiam.

This action is brought to recover installment payments made upon the purchase of some lots on Staten Island, the ground of plaintiff’s rescission being that false representations had been made by defendant’s agent at the time of the sale. These representations were to the effect that a certain plot on the map shown to plaintiff had been sold to the railroad company for the purpose of the erection of a station thereon; that plaintiff purchased lots adjacent and that the representations were wholly false.

Plaintiff’s chief witness was the salesman, a former employee of defendant. After defendant had offered evidence to the effect that at the time of the sale a prospectus of defendant had been shown to plaintiff or her agent and had been carefully examined, the prospectus itself was offered in evidence but excluded. It is sought to justify this exclusion on the plea that it was a self-serving declaration and unimportant in any event. The prospectus includes a large overhead view of the property and vicinity and indicates in plain type three railroad stations in proximity to the property, but no notation whatsoever in respect of the plot alleged to have been represented as the new railroad station, and on the whole might be fairly interpreted by the jury as indicating that no such station was to be placed there.

It seems to be too plain for argument that this evidence was competent and material both as bearing on the question whether plaintiff relied on the alleged statements of the agent or not, and upon the credibility of the agent, who admitted that he had seen the prospectus, indeed copies of this document were concededly freely distributed among all the agents of the company for the use of their customers. It is clear that the exclusion of this prospectus was prejudicial to the defendant’s case, and the prejudice is accentuated by the fact that a number of questions along the [45]*45same line addressed by defendant’s counsel to the former salesman witness, were excluded, and thus the attempts of defendant’s counsel to further assail the witness’ credibility were prejudicially hampered.

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

All concur; present, Bijur, Levy and Crain, JJ.

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Bluebook (online)

131 Misc. 43, 225 N.Y.S. 690, 1927 N.Y. Misc. LEXIS 1245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solomon-v-commonwealth-associates-inc-nyappterm-1927.