Callan v. Fish & Marvin ( 1930 )

The decision of this court handed down on June 23, 1930, is hereby amended to read as follows: Judgment reversed upon the law and the facts as to defendant Rosa Altieri, with costs to her as against plaintiff, and complaint dismissed as to her, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Judgment unanimously affirmed as to defendants Fish & Marvin and Taylor, with costs to plaintiff as against them. We are of opinion that, in view of the concession at folio 413 of the record, defendants Fish & Marvin and Taylor were never authorized by defendant Rosa Altieri to sell property located on the easterly side of Timpson street, ninety feet south of the Esplanade, and that the only testimony connecting Rosa Altieri with the alleged carelessness, negligence or fraud is that of defendant Taylor, at folios 472 and 474 of the record, to the effect that defendant Altieri’s husband and brother had shown Taylor the location of the lot; hence, defendant Rosa Altieri should not be cast in damages for the alleged reckless indifference (Hadcock v. Osmer, 153 N. Y. 604) of defendant Taylor who exhibited to the plaintiff, for sale, a lot of the exact location of which he had no idea, and the judgment, under the circumstances, as to defendant Rosa Altieri is contrary to the evidence. Lazansky, P. J., Rich, Kapper, Carswell and Scudder, JJ., concur. Settle order on notice.