#### Jacob Kulla, Appellant, *v.*Hirsh Finer et al., Respondents.

(Supreme Court, Appellate Term,

May, 1898.)

False representations — Proof

Where proof of alleged false and fraudulent representations, which procured the plaintiff to part with his property, is made by his.own testimony and that of two additional witnesses, it is erroneous for the court to dismiss the complaint upon the ground *,f*that there was no evidence a|S to false and fraudulent representations-.”

■ Appeal by the plaintiff from a judgment of the Municipal Court -’of the City of Kew York, borough of Manhattan, fourth district, dismissing the complaint, with costs."

*471The nature of the action and the material facts are stated in the opinion.

Louis Levy, for appellant.

Samuel F. Hyman, for respondents.

Giegerich, J.

This action was brought to recover the possession of certain goods claimed to have been procured from the plaintiff by the false and fraudulent representations of the defendant Finer, as to property owned by him, and which, it is averred, the defendant Mantel subsequently purchased from his codefendant with notice of the alleged fraudulent character of the transaction.

The defendant Mantel alone appeared and defended the action.

When the plaintiff rested said defendant moved for a dismissal of the complaint upon the ground “ that there was no evidence as to false and fraudulent representations,” which application was granted, and the plaintiff has brought 'this appeal.

For the purposes of a determination upon such a motion the testimony of the plaintiff should have been assumed to be true, and he should have been given the benefit of all legitimate inferences therefrom in his favor. There was some evidence of fraud introduced upon the trial, which viewed in its most favorable light was susceptible of the inference 'that plaintiff parted with' the possession of the merchandise upon the representation piade by defendant Finer to him, that he had bought two wagons and two-horses worth about $400; that such statements were false and so-known to be by the said defendant when made; that they were relied upon by the plaintiff, who would not have delivered' the goods but for such representation; that upon discovering the fraud plaintiff rescinded the contract of sale, and demanded the return of the property; and that the defendant Mantel bought the- same with notice of such alleged fraud.

These facts were established not alone by the plaintiff’s own' testimony, but by that of two additional -witnesses, and we fail to perceive upon what theory they were ignored.

It is argued by the said defendant that the justice■ discredited the plaintiff’s entire testimony. This ruling, however, as we have seen, was not placed upon that ground. Moreover the plaintiff was corrobarated by two witnesses, one ’of whom was not connected, in business with him.

*472The defendant further contends that the alleged false representations were made subsequent to the sale and delivery of the. goods,, but the record shows the contrary. ■ *{*

It follows from these views, that the dismissal of the complaint was error, and that the judgment should be reversed,and a new trial ordered, with coste to the appellant to' abide the event. ■

Beekman, P. J., and Qildersleeve, J., concur.

Judgment reversed-and new trial ordered, with .costs to appellant to abide event.'