CHARLES M. LANE, Respondent,
ALBERT O. FENN and Others, Defendants, Impleaded with JAMES S. WATSON and Others, Appellants.
APPEAL by the defendants, James S. Watson and others, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 17th day of December, 1909, granting the
plaintiff's motion to set aside the verdict of a jury in favor of the said defendants and directing a new trial, and also from an order entered in said clerk's office on the 30th day of December, 1909, denying the said defendants' motion for leave to amend, correct or resettle the prior order.
John G. Milburn, Joseph W. Taylor, Walter S. Hubbell and Daniel J. Kenefick, for the appellants.
Alton B. Parker, James M. E. O'Grady, Elbridge L. Adams, John Desmond and Frank Sullivan Smith, for the respondent.
The main questions in this case are similar to those involved in the case of Downey v. Finucane (146 A.D. 209). The two cases were argued together. The plaintiff, as in the Downey case, seeks to recover damages for fraud and deceit, having purchased some of the bonds and stock, relying upon the prospectus referred to in that case.
In this case the jury rendered a verdict as to some of the defendants and disagreed as to the others. The trial judge set aside the verdict and the appeal is from the order setting aside that verdict. But four of the six alleged fraudulent statements were pleaded. The fourth and sixth are not included in the complaint.
At the close of the evidence the defendants moved for a direction of a verdict in their favor, which was denied. The defendants then asked that each of the four questions of fraud set forth in the complaint be taken from the jury. The motion was granted as to the representations regarding the New York city franchise and the issuing of the $41,000,000 of stock on the property at an overvaluation. The other two questions were submitted to the jury.
More than six peremptory challenges were allowed to each side, the judge taking the view that each of the defendants was entitled to six. In his opinion granting the new trial (65 Misc. 336) he adheres to the ruling as regards the New York city franchise and the $41,000,000 of stock, but as to the challenges, expresses the opinion that as the case finally developed,
all the defendants together should have been allowed not more than the six peremptory challenges, but that it was not apparent when the jury was impaneled. He also held that the finding of the jury which resulted in a verdict of no cause of action as to some of the defendants was against the weight of the evidence.
Of course, if we are right that the fraud may be predicated upon the representations relating to the New York city franchise and the $41,000,000 of stock issued, that of itself is sufficient to uphold the order granting the new trial. Furthermore, we are not persuaded that there was an abuse of discretion upon the part of ...