#### Joseph Bellettiere, Respondent, *v.*John W. Lawlor, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

Fraud — Sale of business — Falsity of representations not shown — Damages — Municipal Court — lío equity jurisdiction.

Where, in an action to recover damages for false and fraudulent representations inducing the purchase of defendant’s barber-shop, the alleged representations as to the receipts of the business per day are established but the only witness called to prove their falsity, a barber who had been employed in the shop for over a year previous to the sale, repeatedly stated that he could not tell what the daily receipts were and no testimony on the subject of damages is offered, a judgment in plaintiff’s favor will be reversed and a new trial ordered.

An action in equity for the rescission of a sale upon the ground of fraud is not cognizable in the Municipal Court of the city of New York.

. Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, tenth district, borough of Manhattan.

Julius D. Tobias (Isaac Josephson, of counsel), for appellant.

Andrew J. Smith, for respondent.

Greenbaum, J.

This action was brought to recover the sum of $500, as damages for fraud. It was alleged that plaintiff was induced to purchase of defendant a barber-shop business, consisting of stock, fixtures and good will, for the sum of $500, relying upon the false and fraudulent representations of the defendant that the business was a profitable one; *“*that the gross receipts had averaged during the year previous from $60 to $65,” presumably per day, as testified to by plaintiff; that said representations were false and untrue, and so known to be by defendant, and that the plaintiff was thereby damaged in the sum of $500.

*162The alleged representations were established upon the trial, but the plaintiff failed to sustain the burden of proof in two essential respects, first, in omitting to show that the gross receipts of the business had not averaged from $60 *to*$65 per day during the previous year; and secondly, in neglecting to give any proof which would furnish a basis *j*for estimating damages.

The only witness called to prove the falsity of the representations was a barber, who had been employed in the shop for upwards of a year previous to the sale, but who repeatedly stated that he could not tell what the daily receipts were; that he *“*did not bother with thatthat if he should say *“*$40 or $50 or $60 I must lie; I say that I did not bother with it and that is all. * * * I don’t know anything and I did not work myself on commission. I got a steady salary and not a commission * * * and I was working in the front and in the cigar store and all around.”

This witness in the course of considerable prodding stated that nine dollars was “ about the highest ” sum taken in per day and that sometimes it would be six dollars, seven dollars or eight dollars.

Fraud will not be presumed and it is incumbent upon the plaintiff to furnish reasonably satisfactory evidence thereof.

On the question of damage, the proof is altogether deficient. Eo testimony of any kind bearing upon the subject of damages was offered.

The learned justice aud the counsel for the plaintiff apparently tried the case as though it were one for rescission of contract, an action in equity not cognizable in the Municipal Court.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event,

Scott and Levextbitt, JJ., concur.

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