Opinion
January 21, 1938.
In an action to recover the purchase price of a guaranteed mortgage certificate plaintiffs claim the sale was induced by false representations and that after discovery thereof they rescinded the purchase and tendered the certificate to the appealing defendant. The issue as to fraud was disputed by the appealing defendant. At the end of the entire case both sides moved for the direction of a verdict. The appealing defendant's motion was denied; and that of plaintiffs granted. Immediately thereafter and before the verdict had been rendered, appellant's counsel attempted to withdraw his motion and requested that the case be submitted to the jury. The trial justice declined to grant such withdrawal. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. It was error to refuse to grant the request to submit the questions of fact to the jury. ( Kinner v. Whipple, 198 N.Y. 585, revg. 128 App. Div. 736, on dissenting opinion below; Brown Paint Co. v. Reinhardt, 210 N.Y. 162; Washington Finance Corp. v. Samuels, 224 App. Div. 672; 4 Carmody, N.Y. Prac. § 1360, pp. 3146, 3147.) There were errors in exclusion of evidence, which very likely will not occur on a new trial. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.