Hopkins v. Riggs — 8 N.Y.S. 713

Majority

p. 713

Hopkins v. Riggs.

(Supreme Court, General Term, Second Department.

February 12, 1890.)

Headnote

Deceit—Fraudulent Representations—Evidence.

In an action for fraudulent representations to induce plaintiff to buy a restaurant, it-appeared that defendant represented that the business was profitable; that the gross receipts were from $80 to $125 daily; and that the average daily run of customers was from 400 to 500. It further appeared that defendant procured plaintiff to stay at the restaurant for a time, during which it was crowded with customers, a large number of whom, as plaintiff alleged, were furnished with free commutation tickets. Plaintiff testified that he paid 81,300 for the business; that after he took charge of the restaurant there were scarcely 100 customers during the day; that the receipts amounted to about S20 a day, which was not equal to the expenditures; and that he subsequently sold the restaurant for $200. Held, that the evidence warranted a verdict in nlaintiff’s favor.

Appeal from circuit court, Suffolk county.

Action by William A. Hopkins against Leon C. Riggs to recover damages alleged to have been sustained by plaintiff in consequence of false and fraudulent representations made by defendant to induce the purchase of a restaurant on the Bowery, in New York city. The representations were that the business at 249 Bowery was a profitable business, and the gross receipts were from $80 to $125 daily, and that the average daily run of customers was from 400 to 500. Plaintiff in his complaint averred that he relied on these representations, and paid $1,300 for the restaurant; that the statements were untrue to the knowledge of defendant, in that the daily receipts were not from $80 to $125, and that the average daily run of customers was not from 400 to 500, but, on the contrary, a number of persons had been provided by defendant with free commutation tickets, to maintain a deceptive appearance of patronage. Plaintiff’s evidence, after testifying to the representations above set forth, was to the effect that defendant invitad him to come in and sit down, and he would see that there was no minute of the day but some would be found there. Plaintiff did so, and there seemed to be a good attendance. The place was well crowded. Sometimes there would not be seats to accommodate them all. After plaintiff took charge of the business the customers were hardly 100 per day. The receipts were between $18 and $20 per day, and did not equal the expenditures. He finally sold the restaurant for $200. Defendant introduced a number of witnesses who testified that the receipts and patronage were as represented. The jury, however, returned a verdict of ■$1,100 in plaintiff’s favor. From a judgment thereon, and an order denying his motion for a new trial, defendant appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

A. H. Berrick, (John Fennel, of counsel,) for appellant. Thos. J. Ritch, Jr., for respondent.

There is no merit in this appeal. The action is for the recovery of damages for false and fraudulent representations, and depended entirely upon the evidence for its sustenance. The case was fairly submitted to the jury, and a verdict was rendered for the plaintiff. The facts are thus settled against the defendant; and the evidence was sufficient to justify the submission of the case to the jury, and to sustain the verdict. The judgment and ■order denying a new trial should be affirmed, with costs.