Warshow v. Title Guarantee & Trust Co.

Appellate Division of the Supreme Court of New York

Warshow v. Title Guarantee & Trust Co.

253 A.D. 839, 1 N.Y.S.2d 560, 1938 N.Y. App. Div. LEXIS 8859

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 21, 1938

StatusPublished

This text of 253 A.D. 839 (Warshow v. Title Guarantee & Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warshow v. Title Guarantee & Trust Co., 253 A.D. 839, 1 N.Y.S.2d 560, 1938 N.Y. App. Div. LEXIS 8859 (N.Y. Ct. App. 1938).

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Opinion

In an action to recover the purchase price of a guaranteed mortgage certificate plaintiffs claim the sale was induced by false representations and that after discovery thereof they rescinded the purchase and tendered the certificate to the appealing defend[840]*840ant. The issue as to fraud was disputed by the appealing defendant. At the end of the entire ease both sides moved for the direction of a verdict. The appealing defendant’s motion was denied; and that of plaintiffs granted. Immediately thereafter and before the verdict had been rendered, appellant’s counsel attempted to withdraw his motion and requested that the case be submitted to the jury. The trial justice declined to grant such withdrawal. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. It was error to refuse to grant the request to submit the questions of fact to the jury. (Kinner v. Whipple, 198 N. Y. 585, revg. 128 App. Div. 736, on dissenting opinion below; Brown Paint Co. v. Reinhardt, 210 N. Y. 162; Washington Finance Corp. v. Samuels, 224 App. Div. 672; 4 Carmody, N. Y. Prac. § 1360, pp. 3146, 3147.) There were errors in exclusion of evidence, which very likely will not occur on a new trial. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.

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In an action to recover the purchase price of a guaranteed mortgage certificate plaintiffs claim the sale was induced by false representations and that after discovery thereof they rescinded the purchase and tendered the certificate to the appealing defend[840]*840ant. The issue as to fraud was disputed by the appealing defendant. At the end of the entire ease both sides moved for the direction of a verdict. The appealing defendant’s motion was denied; and that of plaintiffs granted. Immediately thereafter and before the verdict had been rendered, appellant’s counsel attempted to withdraw his motion and requested that the case be submitted to the jury. The trial justice declined to grant such withdrawal. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. It was error to refuse to grant the request to submit the questions of fact to the jury. (Kinner v. Whipple, 198 N. Y. 585, revg. 128 App. Div. 736, on dissenting opinion below; Brown Paint Co. v. Reinhardt, 210 N. Y. 162; Washington Finance Corp. v. Samuels, 224 App. Div. 672; 4 Carmody, N. Y. Prac. § 1360, pp. 3146, 3147.) There were errors in exclusion of evidence, which very likely will not occur on a new trial. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.

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Bluebook (online)

253 A.D. 839, 1 N.Y.S.2d 560, 1938 N.Y. App. Div. LEXIS 8859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warshow-v-title-guarantee-trust-co-nyappdiv-1938.

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