Smith v. Mott — 53 N.Y. St. Rep. 346

Majority

p. 346

Albert G. Smith, Pl’ff, v. Charles E. Mott, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1893.)

Headnote

Bills and notes—Evidence.

In. an action on a Bohemian oat note, where the defense was that defend" ant relied on a representation that the company was worth $100,000, anda bond given by it to sell a portion of his produce the following year, two annual reports of said company filed in the office of the secretary of state of Michigan, showing its assets to be only $10,000, were offered in evidence to prove the falsity of the representation, but were rejected. Held, error; that they should have been received and submitted to the jury on the question of fraud in procuring the note from defendant.

Motion by the defendant for a new trial on a case and exceptions directed to be heard in the first instance at general term, •after verdict for the plaintiff directed by the court at Monroe circuit.

Jno. Desmond, for the motion; C. A. Widener, opposed.

On a former hearing of this motion ( 48 St. Rep., 300 ) it was considered that, although evidence of the annual reports of the “ Bohemian Oat & Cereal Company,” filed in the office pf the secretary 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, 18 St. Rep., 726 , affirmed without opinion by the court cf appeals, 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

Dwight, P. J., Lewis, Macombee and Haight, JJ., concur.