John Gaetano, Respondent, v. Giovanni Perretta, Appellant

Fourth Department, May, 1926. John Gaetano, Respondent, v. Giovanni Perretta, Appellant. Trial — theory of case — action tried on theory of fraud — refusal to grant plaintiff’s reguest at close of case to proceed on contract cannot he raised since he had verdict — proof of damages lacking — instruction as to damages was erroneous. Appeal from a judgment of the County Court of Oneida county in favor of plaintiff, entered in Oneida county clerk’s office on February 11, 1925; and also from an order entered on February 28, 1925, denying a motion to set aside the verdict of a jury and for a new trial. [MAJORITY — Per Curiam.] Per Curiam. Whatever course may hereafter be pursued herein, it was the law of the case as it was sent to the jury that this was an action not on contract, but for damages for deceit, fraudulent representations. The plaintiff’s request to proceed on contract at the end of the case was refused. Of this he cannot complain, since he obtained a verdict in his favor. Not only was proof of damage lacldng, but the rule as to damages laid down by the court for the guidance of the jury was erroneous. In the form of action as submitted, $550 plus interest was not necessarily the amount of damages sustained, if any. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ. Judgment and order reversed on the law and facts, and a new trial granted, with costs to appellant to abide event.