McGuire v. Metropolitan Life Insurance , 37 N.Y.S.2d 635 ( 1942 )

The gravamen of the action is fraudulent misrepresentation, made by the defendant’s agent to the annuitant, and his reliance thereon. The plaintiff is entitled to the assumption that she established by adequate evidence every issue upon which some evidence was offered. (African Metals Corp. v. Bullowa, 288 N. Y. 78.) Tested by this rule the plaintiff established that the representations relied upon were made by the defendant’s agent, and that the jury might infer that the misrepresentations were false and were made prior to the purchase of the annuities. Efom all the circumstances surrounding the transaction the jury might infer that the plaintiff’s intestate relied on such representations. (Ochs v. Woods, 221 N. Y. 335.) There was no evidence that either the plaintiff or her intestate, with knowledge of the misrepresentation, ratified the contracts. The plaintiff made out a prima facie ease and the trial court committed error in not submitting the ease to the jury. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.