Majority
p. 940SMITH v. MOTT. (Supreme Court, General Term, Fifth Department. June 23, 1893.) Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
Headnote
Bohemian Oats Note—Fraud—Evidence.In an action on a “Bohemian Oats” note the defense was that it had been obtained by the fraudulent representation that the company from which the, oats were purchased was worth $100,000, and that defendant relied on a bond given him by the company, agreeing to sell for him the following year a sufficient quantity of oats to enable him to realize $100 more than the amount of the note. Held, that annual reports filed by the company in the office of the secretary of state of Michigan, showing that the company’s assets amounted to only $10,000, were admissible in evidence as bearing on the question of fraud in procuring the note, and it was prejudicial error to exclude them. 20 N. X. Supp. 582, reversed.
On reargument.
For decision on first hearing, see 20 N. Y. Supp. 582 . For order granting reargument, see 22 N. Y. Supp. 1122 .
John Desmond, for the motion.
H. H. Widener, opposed.
On a former hearing of this motion it was considered that, although evidence of the annual reports of the “Bohemian Oat and Cereal Company,” filed in the office of the secretary
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of state of Michigan, may have been improperly excluded, yet that the defendant was probably not prejudiced by such ruling. A further examination of the case of Matson v. Blossom, (Sup.) 4 N. Y. Supp. 489 , affirmed without opinion by the court of appeals, ( 30 N. E. Rep. 865 ,) leads us to the conclusion that that evidence should have been received, and submitted to the jury upon the question of fraud in procuring the note from the defendant; and, such being the case, the exception to the exclusion of such evidence should be allowed, and the motion for a new trial granted.
Defendant’s motion for a new trial granted, with costs to abide the event. All concur.