Opinion
November 1, 1929.
Appeal from Supreme Court of New York County.
A.P. Bachman, for the appellant.
Vincent T. Follmar of counsel [ Joseph F. Quinn, attorney], for the respondent.
The complaint is upon two promissory notes, the making of which was admitted but the consideration for which was denied.
The answer sets up that appellant was induced by false and fraudulent representations by one who admittedly was a selling agent for the respondent, to make the two promissory notes sued upon in payment for two lots in Florida.
The justice who tried the case at Trial Term, without a jury, has stated in his opinion that some of the representations may be excused because plainly beyond the scope of the authority of the agent and, as such, not binding upon his principal. That false representations were made and induced the making of the sale is amply borne out by the record. Out of a mass of misrepresentations it is sufficient to call attention only to the fact that the agent showed to the defendant certain pictures of houses and stated that similar houses were being constructed upon the property in question. This was wholly false. To the foregoing facts the principle of law applies that one cannot retain the product of the misrepresentations and at the same time repudiate the agency and methods which brought it into being. ( Green v. Des Garets, 210 N.Y. 79.)
It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
DOWLING, P.J., MERRELL, McAVOY and PROSKAUER, JJ., concur.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.