Tinkess v. Burns

Judgment and order unanimously reversed on the law and facts, without costs of this appeal to either party, and a new trial granted. Memorandum: In this action for rescission of a contract of purchase of a motel, the trial court granted defendants’ motion for a nonsuit at the close of plaintiffs’ case and dismissed the complaint on the ground that “ the allegations of fraud as alleged in the complaint are not made out by the proof”. The court was quite correct in its statement that there had been a complete failure to prove any of the essentials necessary for success on the theory of fraud.…