FRANCES C. DURYEA and Others, as Executors, etc., of WILLIAM DURYEA, Deceased, Respondents,
EUGENE ZIMMERMAN and WILLIAM C. ROGERS, Appellants, Impleaded with M. COCHRANE ARMOUR and Others, Defendants.
APPEAL by the defendants, Eugene Zimmerman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 1st day of February, 1910, upon the verdict of a jury for $20,000, and also from an order entered in said clerk's office on the 26th day of January, 1910, denying the said defendants' motion for a new trial made upon the minutes.
Rush Taggart, for the appellant Zimmerman.
Edward M. Shepard [Franklin Pierce with him on the brief], for the appellant Rogers.
Robert B. Honeyman, for the respondents.
JENKS, P. J.:
This action is for deceit in a prospectus whereby the plaintiff (since deceased) was induced to buy stock of the Alabama and Georgia Iron Company. The transaction was exclusively between Van Sickle, an employee of Grant Brothers, a firm of stockbrokers, and Gilchrist, an
employee of the defendants Rogers, Brown & Co., who had been authorized by them to take subscriptions for the stock. Gilchrist interested Van Sickle to secure the subscription in question, which was to their mutual advantage perforce of certain commissions. Inasmuch as the deceit was in a prospectus, proof of the exact time when the fraudulent representations were made was not naturally or apparently as essential as if the representations had been direct or oral. For generally it would have sufficed for this feature of the case to show the existence of the prospectus at the time of the subscription. The plaintiff complained that 'on or about the 19th day of October, 1899,' the defendants organized the corporation, and 'on or about the said date' they prepared the prospectus, circulated it, that it was delivered to him to induce him to purchase stock therein, and that in reliance thereon he purchased the stock, but the date of the purchase was not stated. The case has been tried twice. (See 121 A.D. 560.) During the period that intervened the two trials the plaintiff died. His testimony at the first trial was read at this trial. The plaintiff testified that he first conversed with any one at Grant Brothers with respect to this property in the latter part of 1899; he would say it was the latter part of October, and that the conversations continued until November or December. He could not state definitely when he spoke about taking the stock, but it was subsequent to November 1. He could not give the exact date when he first saw the prospectus, but it was handed to him by Grant Brothers in the latter part of that year. Upon cross-examination he testified that the first conversation with Van Sickle might have been as early as the latter part of October; but, as definitely as he could say, in the latter part of that year. It appeared that he had bought a large quantity of stocks in 1899. The testimony of Van Sickle, taken at the first trial and read upon the second trial, is that he had a conversation with Gilchrist in 1899, and thereafter offered some of this stock to the plaintiff, who subscribed for it, and that Van Sickle then had a prospectus in his hand. He had talked with the plaintiff about a month; the plaintiff agreed to subscribe, as near as he could recollect, in the fall of 1899--it was late in that fall. He presumed it was after he had given the prospectus to the plaintiff--he would say it was afterwards. His best recollection was that plaintiff had the prospectus first. As near as he
could determine it, he had the conversation with Gilchrist sometime in the fall of 1899. He thought he must have had the prospectus before he talked with the plaintiff. He had a number of them. His recollection was that he had the circular first. He had no books or memoranda of the transaction. It was only his indefinite recollection that it was sometime in the fall of 1899. When pressed whether he could testify that the transaction did not occcur in August, he answered that he could not fix any date except that it was in the fall of 1899. He did not think it occurred in the month of August; he thought it was later, but he was not positive. He knew that it was in the latter part of a year 'six or seven years ago.'
It is hard to suggest any reason why the plaintiff, an investor in many stocks in that year, who was accustomed to invest upon the recommendations of his brokers, would have had impressed upon his memory the exact date of this particular subscription, made through them or their employee, or why the employee would have been impressed in like fashion at the time. And so their testimony after the lapse of six or seven years was naturally indefinite so far as the month is concerned. But when the undisputed testimony of the defendant established beyond question that the prospectus was not printed until November 11, 1899, then, presumably for the first time, it appeared essential to the plaintiff's case to establish that his subscription to the stock was made subsequent to that day.
The proof to establish this fact rests upon the testimony of the plaintiff, Van Sickle and Grant, the senior member of Grant Brothers, at the first trial, which was read at this trial, and the testimony of Van Sickle at this trial. I fail to find any testimony from the plaintiff as to the time of the subscription other than that which I have quoted. Van Sickle when called upon this trial was, of course, awake to the importance of the time of the subscription relative to November 11, 1899. I am not prepared to say that his recollection upon this trial may not have been more clear than upon the former trial, in that he directed his memory to recall a time now important. But nevertheless he is not a witness who now testifies on a subject to which his attention was not then particularly directed, ...