#### Hugh J. Murphy, Appellant, *v.*John J. Murphy and James J. Murphy, Respondents.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

False representations — statement as to value of real property — dismissal of complaint.

Where plaintiff, an orphan from childhood and inexperienced in business, after coming of age and upon the representations of defendants that his one-twelfth interest in certain real estate of his grandfather, defendants’ father, was worth only $300 and that if plaintiff did not take that he would not get anything, conveyed said interest to one of the defendants for that amount, and plaintiff subsequently learned that the assessed value of said real estate, at the time of the transfer of his interest therein, was $7,800 but worth $10,000, the dismissal of the complaint in an action for false and fraudulent representations, on the ground that such a representation as to value was merely an opinion, was error.

The value of the property being peculiarly within the knowledge of defendants, and the relationship of the parties such that plaintiff had a right to trust and confide in defendants, their statement as to the value of the property must be deemed a statement of fact.

Appeal by the plaintiff from a judgment dismissing the complaint at the close of the plaintiff’s case, entered in the City Court of the city of Hew York.

Monfried *&*Feinberg (Max Monfreid and Belle Robins, of counsel), for appellant.

H. B. Davis (Louis Sachs, of counsel), for respondents.

Bijur, J.

Plaintiff sues to recover damages by reason of the false and fraudulent representation of defendants, his uncles, under the following circumstances:

Having been an orphan from childhood, he resided with one or both uncles whenever he was not traveling outside of the city as an usher in a circus. He was inexperienced in business. On one of his returns to this city, when he was twenty-two years of age, he sought from defendants his share in the estate of his grandfather — the father of the *179defendants. They told him that his interest was one-twelfth in certain houses, and that it was worth only $300, and that if he did not take that he would not get anything, whereupon he deeded his interest to one of them for that amount. Subsequently he learned that the property was worth some $10,000 and that even its assessed valuation at the time he made the transfer was $7,800.

The learned trial justice appears to have dismissed the complaint on the theory that a representation as to value is merely an opinion. But, under the circumstances disclosed by plaintiffs testimony, the defendants’ statements were not of an opinion but of a fact. The value of the property, in reference to which the representation was made, was peculiarly within the knowledge of the defendants, and the relationship of the parties was such.that the plaint-iif had the right to trust and confide in the statements of the defendants. Simar v. Canaday, 53 N. Y. 298; Daiker v. Strelinger, 28 App. Div. 220.

Furthermore, plaintiffs inexperience and his relations to his uncles, as shown by his undisputed evidence, warranted his making no further inquiries in the matter. Eaton v. Avery, 83 N. Y. 31, 39; Clark v. Rankin, 46 Barb. 570, 575; 20 Cyc. 126; Hall v. Perkins, 3 Wend. 627.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.