Marshal v. 966-972 Fulton Street Corp. — 190 A.D. 932

Majority

p. 932

First Department,

January, 1920.

Jackson C. Marshal and Another, Respondents, v. 966-972 Fulton Street Corporation, Appellant.

Headnote

Landlord and tenant—lease of theatre obtained by fraudulent representations — cancellation — evidence — damages.

Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiffs, entered in the New York county clerk’s office April 18, 1919, canceling and rescinding the contract made between plaintiffs and defendant and awarding to the plaintiffs the return of the moneys paid under said contract, and $250 damages.

We are of opinion that the conclusion of the trial judge that the lease of this theatre was obtained by fraudulent representations is sustained by the evidence. This conclusion would justify a judgment in favor of the plaintiffs, both for the $1,000 advanced upon the contract and for the $562.50 paid as rent. In addition to these sums, however, the trial judge has found that the plaintiffs were damaged in the sum of $250. The respondents’ brief fails to point out any specific evidence upon which this finding of damage can be based, and we are unable to find any in the record. It follows, therefore, that the judgment should be modified by deducting therefrom the sum of $250 found as damages, and, as modified, affirmed, without costs to either party. Present — Clarke, P. J., Dowling, Smith, Page and Philbin, JJ. Judgment modified as directed in opinion and as so modified affirmed, without costs. Settle order on notice.