Opinion
June 27, 1950.
Appeal from Supreme Court, Delaware County.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ.
Defendants sold a farm, cattle and equipment to the corporate plaintiff, which was organized by the individual plaintiffs for the purpose of purchasing and operating the farm. The plaintiff Sanchez negotiated the written agreement for the sale of the farm, which was executed between himself and the defendants, and later assigned to the corporate plaintiff. The complaint alleged five causes of action, the last two of which were dismissed on the trial by consent, and the first three submitted to the jury. The first cause alleged fraud in connection with the sale of a herd of dairy cows; the second, a breach of contract for failure to pay certain taxes assessed against the premises in accordance with the terms of the agreement, and the third, a breach of contract for failure to deliver certain items of personal property. The jury returned one verdict of $7,500 in favor of the plaintiffs. At the close of all the evidence defendants made no motion to dismiss, or for a directed verdict. This amounted to a concession that there was evidence which justified a submission of all three causes to the jury ( Eno v. Klein, 236 N.Y. 543). There was evidence of false representations made by the defendant Paul Denman, in the presence of the other defendant, as to the condition of the dairy herd sold, as to the number of purebred registered cows, and the milk income which the defendants made from the dairy. The jury could also have found that the defendants failed to deliver certain items of personal property mentioned in the complaint. Defendants were liable for school taxes assessed against the premises up to October 1, 1947, according to the terms of the agreement, and concededly they failed to pay them. Plaintiffs' evidence as to damages was not as clear and precise as it might have been, but we think it was sufficient to send the case to the jury, especially in view of defendants' failure to move for a dismissal of the complaint at the close of the testimony. There were no errors in the reception of evidence sufficient, in our opinion, to justify a reversal. Judgment unanimously affirmed, with costs.