Opinion
May 27, 1963
In an action to recover damages for fraud in the sale of land and the house thereon, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered December 28, 1961 after a jury trial, upon the direction of the court at the close of their case, dismissing the complaint on the merits as against both defendants and awarding costs to them. Judgment modified on the law by striking out the provision dismissing the complaint as against the defendant Chester Associates, Inc., and the provision awarding costs to said defendant; the action is severed as between the plaintiffs and said defendant; and a new trial is ordered between the plaintiffs and said defendant, with costs to abide the event. As so modified, judgment affirmed, with costs to the defendant Nassau-Suffolk Funding Corp., payable by plaintiffs. In our opinion a prima facie case of actionable fraud on the part of defendant Chester Associates, Inc., was established and, hence, as to such defendant it was error to dismiss the complaint. However, the trial court properly dismissed the complaint as against the defendant Nassau-Suffolk Funding Corp., for failure of proof. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.