Majority
p. 58Morris M. Lessler, Respondent, v. William Bernstein, Appellant. (Supreme Court, Appellate Term, November, 1909.)
Headnote
Instructions — Time and manner of giving and sufficiency of instructions — Misleading instructions.Saving, questions for review — Objections and exceptions in general'— Necessity — Exceptions to instructions—Power of court in absence of exception. .
In an action to recover for goods sold and delivered, instructions of the trial judge, given by mistake, appropriate to an-action for fraud and misrepresentation, constitute error for which a judgment for the plaintiff should be reversed, although no exception was taken.
p. 59
Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
Horace London, for appellant.
Samuel S. Breslin, for respondent.
The action was on contract for goods sold and delivered. The learned trial judge submitted the case to the jury as one for damages sustained by the plaintiff through the fraudulent representations of the defendant. Proper instructions in an action for fraud and misrepresentation were laid before the jury and a verdict rendered for the.plaintiff. Ho exception was taken to the charge. The court discovered the error and directed that a body execution should not issue. We are of the opinion that the judgment should not stand and that the interests of justice require a new trial.
Present: Gildersleeve, Seabury and Lehman, J J.
Judgment reversed and new trial ordered, with costs to appellant to abide event.