Majority
p. 197(65 Misc. Rep. 58.) LESSLER v. BERNSTEIN. (Supreme Court, Appellate Term. November 12, 1909.) Argued before GILDERSLEEVE, P. J., and SEABURY and LEÍHMAN, JJ.
Headnote
Appeal and Ebrob (§ 1066*)—Harmless Error—Instructions—Conformity to Issues. °6Where, though the action was on contract for goods sold and delivered, the' trial court submitted the case as one for damages by defendant’s fraudulent representations, by instructions proper in an action for fraud, which were not excepted to, but afterward discovered the error and prohibited a body execution from issuing, judgment for plaintiff will be reversed, and a new trial ordered.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Morris M. Lessler against William Bernstein. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
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 rep
p. 198
resentations of "the defendant. Proper instructions in an action for fraud and misrepresentation were laid befor.e- the jury, and a verdict rendered for the plaintiff. No 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.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.