FRAUD - NEGLIGENT MISREPRESENTATION - LIABILITY WITHOUT FAULT - CONTRIBUTORY NEGLIGENCE AS A DEFENSE

Plaintiff purchased a pearl necklace from the defendant. In a suit for fraud, plaintiff alleged that the defendant had misrepresented the quality of the necklace and his own expert ability. Before purchasing, plaintiff had secured the services of another expert. The trial court found that there was no reliance by the plaintiff on the defendant's misrepresentation and that the plaintiff was guilty of contributory negligence.

Held, by the trial court, (1) that lack of reliance barred recovery for fraud; (2) that contributory negligence barred recovery for negligent misrepresentation; and (3) that if New York courts recognize a liability without fault in this field, recovery on that theory was also barred by the plaintiff's contributory negligence. Gould v. Flato, 170 Misc. 378, 10 N. Y. S. (2d) 361 (1938).