Bernstein v. Lester — 84 N.Y.S. 496

Majority

p. 496

BERNSTEIN v. LESTER.

(Supreme Court, Appellate Term.

November 6, 1903.)

Headnote

1. Fraud—Advance of Purchase Price—Sale of Goods to Third Person.

One who obtains money on a promise made with fraudulent intent, to deliver certain goods in his stock, and then sells his entire stock to another, is liable for the fraud.

3. Witness—Denial of Facts—Propriety of Further Questions.

Questions relating to matters the existence of which the witness denies, and proof of which is essential as a basis for further inquiry, are properly excluded.

p. 497

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

Action by Isaac Bernstein against Morris Lester. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Louis Levene, for appellant.

Marks & Marks, for respondent.

The record supports a finding of fraud, the proof being that the defendant obtained money from the plaintiff’s assignor upon a promise to deliver certain goods forming part of his stock, and then sold his entire stock to somebody else, under circumstances leading to the inference that the promise itself was given with a fraudulent intent. There is no ground for the assumption that the justice when' rendering judgment for the plaintiff disregarded the allegation of fraud, and there appears to be no error in the rulings upon the evidence.

The questions excluded assumed facts not proven, or related to matters the existence of which the witness had denied, and proof of which was essential as a basis of further inquiry.

Judgment affirmed, with costs.