DeFranco v. Shedden

This action was brought in the City Court of Yonkers to recover damages alleged to have been sustained by defendant’s fraud in connection with the sale of a gasoline station and repair shop by defendant to plaintiff. Plaintiff received a verdict for $2,000. Defendant moved to set aside the verdict and for a new trial. The motion was denied but the order of denial was not entered until December 10, 1936. A judgment was entered on October 6, 1936. Defendant appeals from the order. Order reversed on the law, with costs, the motion granted in so far as it seeks to have the verdict set aside, and complaint dismissed, with costs, Plaintiff alleged he was induced to purchase the business on the false representations : (1) that the monthly income from the repair work was between $200 and $250; and (2) that the repairing of automobiles could lawfully be carried on at the premises. Plaintiff’s proof showed that during the few months he operated the business his income from repair work was not less than the amount represented, and that the business of repairing automobiles at the premises was prohibited by the zoning ordinance and, therefore, was illegal. Under the circumstances plaintiff failed to establish the cause of action alleged. An action for fraud cannot be predicated upon a misrepresentation of the law, unless a relation of trust or confidence exists between the parties. Therefore, the complaint should have been dismissed. (Duffany v. Ferguson, 66 N. Y. 482; Amherst College v. Ritch, 151 id. 282; Reiss v. Levy, 175 App. Div. 938; Lefferts v. Lefferts, 243 id. 278.) Hagarty, Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., not voting.