Opinion
May 20, 1940.
Action to recover damages for fraud in the sale of a boat thirty-three feet long, with engine, selling price $250, on the ground that there were misrepresentations as to the condition of the boat. Judgment of the County Court of Nassau County in favor of plaintiff reversed on the law and a new trial ordered, with costs to appellant to abide the event. It was error to permit evidence concerning a prior action brought against defendant with respect to the same boat, it appearing that in the prior action the claim was concerning the boat's engine, which was not involved in this action. On the new trial it should be made to appear upon what theory plaintiff is proceeding. If he seeks to recover the purchase price, it should then be shown that he has tendered a return of the boat. That fact was not disclosed in the present trial. If plaintiff seeks to recover damages for alleged fraud, the measure of his damages would be the difference between the price paid and the value of what he received. Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.