#### Allen-Kingston Motor Car Company, Respondent, *v.*Consolidated National Bank of the City of New York, Defendant, Impleaded with William O. Allison and Others, Appellants.

First Department,

May 1, 1914.

False representations as to solvency of corporation — failure of proof— complaint dismissed.

Where, in an action for damages for false representations alleged to have been made by the defendants to the plaintiff as to the solvency of a corporation, which representations were reduced to writing, the plaintiff fails to prove that any one of such representations was false at the time it was made, *or that*the defendants were guilty of a suppression of the truth in regard to the financial condition of the corporation, the complaint should be dismissed.

Where such a case has been twice tried and every person present when the alleged false representations were made has been examined and the plaintiff at both trials has failed to produce evidence to justify a submission of the case to the jury, and it has not suggested that it is able to present any other evidence, the Appellate Division will reverse a judgment in favor of the plaintiff and dismiss the complaint.

*179Appeal by the defendants, William 0. Allison and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of September, 1912, upon the verdict of a jury for $29,553.44, and also from an order entered in said clerk’s office on the 23d day of September, 1912, denying the separate motions of the defendants for a new trial made upon the minutes.

*Royall Victor [Edward H. Green*with him on the brief], for the appellants.

*John Quinn [William F. Goldbeck*with him on the brief], for the respondent.

Scott, J.:

This action is for damages for false representations alleged to have been made by the defendants, appellants, to the plaintiff respecting the solvency of a corporation known as the New York Car and Truck Company. The plaintiff has recovered a judgment from which the defendants appeal. This is the second judgment which the plaintiff has recovered and the second appeal to this court. The facts are stated with sufficient fullness in the opinion rendered on the former appeal (145 App. Div. 294). In that opinion we intimated very plainly that plaintiff had failed, as we considered, to prove the cause of action which it had alleged. We also found error in the admission of evidence which in any event would have necessitated a reversal of the judgment. Those errors were avoided on the second trial, but the evidence as to the facts is substantially unchanged, except that the evidence of one Steigerwald, who was present at the interview at which it is said that the false representations were made and who did not testify at the former trial, was produced at this. It certainly adds no strength to the plaintiff’s case.

Unlike many actions for false representations, there is no question in this case as to the representations that were actually made, for they were reduced to writing, and that writing was introduced in evidence. Notwithstanding the industry and intense earnestness of plaintiff’s counsel, he has failed to point out one single item contained in the written state*180ment which was false at the time it was made. Among the statements was one to the effect that *“*the N. Y. Car & Truck Co. at the close of its first fiscal year July 31st, 1907, showed about $30,000 surplus.” That statement was true because the books of the company did show a surplus of very nearly the amount stated. It is true that it afterwards developed that the assets of the company had been overvalued, but it does not appear that any one of the appellants knew that fact.

Finding it impossible to sustain the charge that any one of the appellants made any false statement, the respondent falls back upon the argument that they were guilty of a suppression of the truth because they did not tell plaintiff’s representative other facts than those which were imparted to him. The difficulty with this contention is that it does not appear that there were any other facts known to appellants which contradicted the written statement or which would have been of any consequence if mentioned. Upon the evidence as it stood at the close of the case the appellants were entitled to a dismissal of the complaint, for which they duly moved. .

The case has now been twice tried and every person present when the alleged deceit was practiced has been examined. Upon neither trial has the plaintiff produced evidence to justify a submission of the case to the jury. It is not suggested, that plaintiff is in possession of or can present any other evidence than it has already produced. Under these circumstances it is our duty not only to reverse the judgment and order appealed from, but to dismiss the complaint.

It is ordered accordingly, with costs to the appellants in all courts.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.