Opinion
November, 1917.
Present — Clarke, P.J., Laughlin, Scott, Dowling and Smith, JJ.
On a former appeal herein ( 175 App. Div. 643) this court held that the plaintiff had failed to connect the defendant McNaught with the fraudulent representations made by the defendant Clarke to the plaintiff to induce the purchase of certain shares of capital stock of the Erkins Company and that the verdict in favor of the plaintiff for the purchase price of the stock was therefore against the evidence, but a new trial was granted, manifestly to afford plaintiff a further opportunity to supply such evidence. There has been another trial on which the plaintiff failed to supply the evidence which this court held was essential to entitle him to recover against the appellant McNaught. Doubtless the trial court failed to observe that the reversal was upon the ground that the verdict was against the evidence, and not against the weight or preponderance of the evidence, and on that erroneous theory denied defendant's motion made at the close of the evidence for the dismissal of the complaint. It follows that the judgment and order should be reversed on the authority of our decision on the former appeal, with costs to appellant, and the complaint dismissed, with costs.
Judgment and order reversed, with costs, and complaint dismissed, with costs.