Westfall v. Title Guarantee & Trust Co.

258 A.D. 928, 16 N.Y.S.2d 723, 1939 N.Y. App. Div. LEXIS 7609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1939
• Status: Published

Opinion

In an action in rescission, based on fraud and misrepresentation, to recover the purchase price of a participating mortgage certificate, the underlying security for which was vacant land in Queens county covered by the certificated mortgage, the plaintiff recovered a judgment which was entered upon the verdict of a jury. From that judgment defendant appeals. Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event, upon the ground that the determination of the jury is against the weight of the evidence. In our opinion the evidence upon the trial eventuating in the judgment appealed from is not substantially different from that upon the former trial. (Vide Westfall v. Title Guarantee & Trust Co., 255 App. Div. 1000.) Although questions of fact are presented by the evidence, it appears overwhelmingly therefrom that the allegations of the complaint were not sustained by proof upon the trial. A new trial is required in the interests of justice. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.