Patrick W. Lamb, Respondent. v. Nathan Kelsey, Appellant

Patrick W. Lamb, Respondent. v. Nathan Kelsey, Appellant. (Argued March 10, 1873; decided June term, 1873.) This was an action to recover damages for alleged fraud and deceit in the sale of a steam engine and boiler. Defendant represented the engine to be in good working order; when taken down for removal it was ascertained that it was not. No evidence was given, however, that defendant knew of the defects. Defendant moved for a nonsuit upon this ground, which was denied by the referee. His report contained no finding on the subject of knowledge. Held, that plaintiff was not entitled to recover, without showing that defendant knew or had reason to believe his statements false; that as no evidence was given that would support such a finding it could not be assumed; that the decision of the referee was evidently based upon the idea that a seienter was not essential to plaintiff’s right of recovery, and that this was error. (See Meyer v. Amidon, 45 N. Y., 169.) S. M. Jackson for the appellant. Isaac Lawson for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for reversal. All concur. Judgment reversed.