Webster v. Longstaff

263 A.D. 930, 32 N.Y.S.2d 383

Opinion

Order, in so far as it set aside the verdict with ten dollars costs, affirmed and otherwise order, together with the judgment, reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: Plaintiffs erred in their theory of the measure of damages and the verdict in their favor was for that reason properly set aside. However, the record justifies a belief that plaintiffs could recover upon a proper theory of damages some verdict in their favor. (Northrop v. Hill, 57 N. Y. 351.) In the interest of justice, therefore, the order appealed from should be affirmed in so far as it set aside the verdict, and otherwise the order, together with the judgment, should be reversed on the law and facts and a new trial should be granted. All concur. (The judgment sets aside the verdict of a jury, in favor of plaintiff and dismisses the complaint in an action for damages sustained by reason of fraud and misrepresentation. The order is the order setting aside the verdict and granting the motion to dismiss.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.