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Sommer v. E. B. Kelly Co.

182 Misc. 119 Court Supreme Court, Appellate Term, Second Department, Decision date 1944-06-15 English

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p. 119
Carl Sommer et al., Copartners Doing Business as Carl Sommer Machine Works, Appellants, v. E. B. Kelly Co., Inc., Respondent.
Supreme Court, Appellate Term, Second Department,
June 15, 1944.
p. 120
Benjamin Jaffe for appellants.
Walter B. Kuhn for respondent.

Inasmuch as the defendant’s misrepresentation was one of fact and not one of law, the amended complaint states a good cause of action. It was error, therefore, for the trial court to dismiss the amended complaint before the opening of counsel to the jury.

The judgment should be reversed upon the law and a new trial granted, with costs to plaintiffs to abide the event.

MaoCrate, Smith and Steinbrink, JJ., concur.

Judgment reversed, etc.