Pitts v. Passero

Judgment unanimously affirmed, with costs. Memorandum: We affirm- the judgment on the ground that, upon all the proof, the court, as trier of the facts, found that there was no recklessness on the part of defendant sufficient to support an inference of fraud, and we cannot say that the evidence preponderated so greatly in favor of the plaintiff as to establish that this finding for the defendant could not have been reached upon any fair interpretation of the evidence (Olsen v. Chase Manhattan Bank, 10 A D 2d 529, 544, affd. 9 N Y 2d 829), In view of the foregoing, we do not reach the question whether the claim of fraud was barred by the Statute of Limitations. (Appeal from judgment of Monroe Trial Term dismissing complaint in action for damages, based on financial statement.) Present — Del Vecchio, J. P., Marsh, Witmer, Cardamone and Henry, JJ.