Opinion
October 26, 1942.
Plaintiff appeals from a judgment dismissing the complaint on the merits at the close of her case. Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. The action is at law for rescission and to recover certain moneys paid by the plaintiff's intestate to the defendant to purchase two single payment life annuity contracts. The gravamen of the action is fraudulent misrepresentation, made by the defendant's agent to the annuitant, and his reliance thereon. The plaintiff is entitled to the assumption that she established by adequate evidence every issue upon which some evidence was offered. ( African Metals Corp. v. Bullowa, 288 N.Y. 78.) Tested by this rule the plaintiff established that the representations relied upon were made by the defendant's agent, and that the jury might infer that the misrepresentations were false and were made prior to the purchase of the annuities. From all the circumstances surrounding the transaction the jury might infer that the plaintiff's intestate relied on such representations. ( Ochs v. Woods, 221 N.Y. 335.) There was no evidence that either the plaintiff or her intestate, with knowledge of the misrepresentation, ratified the contracts. The plaintiff made out a prima facie case and the trial court committed error in not submitting the case to the jury. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.