Opinion
November, 1911.
The only criticism to be made upon this judgment is that the trial justice should have dismissed plaintiffs' complaint instead of giving them judgment for the sum of fifty-five dollars. Plaintiffs were not prejudiced by this error, and defendant does not appeal. The action was brought for damages by reason of the alleged fraud and deceit of defendant. The evidence wholly fails to establish any statement of fact made by the defendant with knowledge of its falsity or with intent to deceive the plaintiffs. It probably was the fact that defendant was mistaken in his opinion as to the ownership of the partitions which were sold to the plaintiffs. But he clearly and accurately stated the facts as to the purchase and installation of the partitions, and showed the attorney for the plaintiffs the lease between himself and the owners of the property. "One who neither withholds nor misstates the facts cannot be adjudged guilty of fraud simply because the courts finally decide the law to be other than he claimed it to be." ( Amherst College v. Ritch, 151 N.Y. 282, 322.) The judgment of the Municipal Court should be affirmed, with costs. Jenks, P.J., Burr, Thomas, Carr and Woodward, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.