Westbrock v. Robb , 170 N.Y.S.2d 450 ( 1957 )

Judgment and order reversed on the law and facts and a new trial granted, without costs of this appeal to any party. Memorandum: The finding of fraud inherent in the verdict of the jury is against the weight of the evidence. Furthermore, there were errors during the trial that require reversal. There was no evidence to support a finding of a fiduciary relationship between the plaintiff and defendant Robb. Nevertheless the Trial Judge indirectly submitted that question to the jury in such a manner that they might have based their verdict on a finding of such a relationship. The admission in evidence of the certificate of incorporation of George Hurlburt Builders’ Corporation was error, as was the reception of the testimony of the witnesses Greenberg, Hilts, Robert and Jones with respect to disassociated contracts with defendant Hurlburt, procured for Hurlburt by defendant Robb, as realtor, and thereafter breached by Hurlburt (People v. Dziobecki, 3 N Y 2d 997). This is particularly so inasmuch as there was no evidence to sustain plaintiff’s claim that defendants were eoprineipals, nor was that question submitted to the jury. Upon the record before us, these were substantial and seriously prejudicial errors. There must be a new trial. All concur. (Appeal by defendant Robb from a judgment of Erie Trial Term for plaintiff and against both defendants, in an action to recover moneys alleged to have been paid to defendants as the result of false and fraudulent representations. The order denied defendant’s motion for judgment or, in the alternative, for a new trial.)

Present — McCum, P. J., Vaughan, Kimball, Williams and Goldman, JJ.