Nash v. Atco Realty Corp.

Memorandum by the Court. A careful study of the evidence leads us to the conclusion that the defendant did not fraudulently misrepresent to plaintiffs the condition of the real estate at Nos. 93 Warren Street and 283 Greenwich Street in the borough of Manhattan, New York City, and that the plaintiffs did not rely upon any statements made on behalf of the defendant in contracting to purchase said property. The determinations of fact to the contrary, which are made in the decision of the trial court without a jury dated November 21, 1947, and the judgment should be reversed, with costs to the appellant, and the complaint dismissed, with costs.

Judgment reversed, with costs to the appellant, and the complaint dismissed, with costs.

(dissenting). Where truth depends on credibility of witnesses, we should give great weight to the advantages of the trial court who has seen and heard the witnesses (Smith v. Smith, 273 N. Y. 380). The issues here presented are issues of fact depending on credibility. The determination of the trier of the facts is supported by the evidence which he was entitled to deem credible and in my opinion we should not overrule his conclusion. A preponderance of the credible evidence supports the finding of the trial justice who was “ satisfied ” that there was fraud in the inducement of the contract. The recitals in the contract of sale do not estop plaintiffs from asserting such fraud (Bridger v. Goldsmith, 143 N. Y. 424). Sufficient evidence, accepted as true by the trial court, was adduced to show that plaintiffs relied on the representations made.

Accordingly, I dissent and vote to affirm the judgment appealed from.

Peck, P. J., Glennon, Yan Yoorhis and Shientag, JJ., concur in decision; Dore, J,, dissents in opinion.

*962Judgment reversed, with costs to the appellant, and the complaint dismissed, with costs. Settle order on notice.