Opinion
January, 1927.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Finch, McAvoy, Martin and O'Malley, JJ.; Finch and O'Malley, JJ., dissent
Judgments affirmed, with costs. No opinion.
I dissent and vote for a reversal of the judgment and the granting of a new trial, upon the ground that the plaintiff's evidence established a representation that application to list the securities had been made. As it was conceded by the answer and upon the trial that such application had not been made, a prima facie case was made out. Moreover, plaintiff offered a letter of defendant's attorney showing there never had been even an intention to list. This fact could be proven by this letter if authority was found to bind the defendant. The plaintiff had a right to insist upon the factor of listing as a condition of his purchase and to rescind if the representation was false. ( Adams v. Gillig, 199 N.Y. 314; Ritzwoller v. Lurie, 225 id. 464.) The fact that the misrepresentation of the agent may have been innocently made and without authority, does not prevent plaintiff from rescinding upon this ground. ( Lauer v. Raymond, 190 App. Div. 319; Hammond v. Pennock, 61 N.Y. 145; Carr v. National Bank Loan Co., 167 id. 375, 380.)