Opinion
November 14, 1949.
Appeal from City Court of the City of New York, County of Queens.
The complaint alleged that plaintiff was induced to purchase certain securities because of defendants' alleged false representations, and sought to recover the purchase price thereof on the ground that the securities were of no value. The trial court instructed the jury that subdivision (2) of section 12 of the Securities Act of 1933 (U.S. Code, tit. 15, § 771) was applicable; and a verdict in plaintiff's favor was rendered for the full amount paid for the securities. The Appellate Term modified the judgment entered thereon by inserting a condition that plaintiff tender the stock to defendants. Order of the Appellate Term reversed on the law, judgment of the City Court vacated, and a new trial ordered, costs in all courts to abide the event. The findings of fact implicit in the verdict of the jury are affirmed. The cause of action which plaintiff alleged in his complaint and attempted to establish on trial was the customary common-law action for fraud and deceit. ( Goldsmith v. National Container Corp., 287 N.Y. 438. ) The complaint did not plead a cause of action under the Securities Act of 1933, nor did the trial proceed upon the theory that that act was applicable. It was consequently error to permit the jury to predicate liability upon the provisions of that statute. ( Walrath v. Hanover Fire Ins. Co., 216 N.Y. 220, 225.) Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.