Opinion
May 20, 1968
In an action to recover damages for fraud and misrepresentation, defendants Weidler appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered April 21, 1966, as is in favor of plaintiff against them, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, and new trial granted as between respondent and appellants, with appropriate severance of action directed, and with costs to abide the event. The findings of fact below have not been considered. Under the posture of the proof it was error to charge the jury that they could return a verdict granting partial recovery to plaintiff. If plaintiff were entitled to recover at all, he should have been awarded the damages actually sustained ( Ganz v. Hi-Line Co., 278 App. Div. 761). Christ, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.