Van Alen v. Trubenback — 159 N.Y.S. 153

Majority

p. 153

VAN ALEN v. TRUBENBACK.

(Supreme Court, Appellate Term, First Department.

May 26, 1916.)

Headnote

Kbaud <3=>o3—Misbbpeesentations—Evidencio of Kalsity.

Where it was sought to recover damages for misrepresentations as to the previous receipts and profits, made in the sale of a business, evidence as to the receipts and profits of the business while conducted by the purchaser is inadmissible to show the falsity of the original representations.

[Ed. Note.—For other cases, see Eraud, Cent. Dig. § 49; Dec. Dig. <§x¿>58.]

ig^oEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Gilbert R. Van Alen against Harry L. Trubenback. From a judgmenffor defendant on his counterclaim, plaintiff appeals. Reversed and remanded.

Argued May term, 1916,

before GUY, BIJUR, and COHALAN, JJ.

Walter H. Dodd, of New York City, for appellant.

William Copeland Dodge, of New York City, for respondent.

Appellant urges a number of errors, but only one need be considered, ,as that requires a reversal of the judgment rendered.

p. 154

Defendant has been allowed to recover damages by way of counterclaim for alleged false representation in regard to the previous receipts and profits of a business which he purchased. The only alleged proof of the falsity of this representation was as to the amount of receipts and profits of the business after defendant took possession and conducted the same. Without commenting on the fact that the proof as to these subsequent receipts was far from complete or sufficient, it is perfectly evident that it did not show the falsity of representations as to the receipts prior to' that time, while the business was being conducted by the plaintiff.

Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.