Young v. Hutchinson , 14 A.D.2d 562 ( 1961 )

In our opinion, the learned trial court was in error in holding, as he did here, that in order to prevail plaintiffs’ proof in support of the alleged fraud “must go beyond the presentation of a preponderance of evidence” and “must nearly approach the standard of proof required in a criminal action” (cf. Kurz v. Doerr, 180 N. Y. 88; Chemical Corn Exch. Bank v. Wassung, 7 N Y 2d 337). It has been held that “intent to defraud is never presumed, but must be established by proof” (Karpas v. Brussel, 217 App. Div. 550, 554); that fraud “is of the nature of a crime, and cannot be presumed” (Morris v. Talcott, 96 N. Y. 100, 107); and that an inference of fraud must be unequivocal (Manchel v. Kasdan, 286 App. Div. 483, affd. 1 N Y 2d 734). These, and similar decisions, are expressions of opinion as to “what constitutes a preponderance of evidence rather than a disagreement with the general rule that a preponderance of evidence is sufficient to establish fraud in a civil case” (24 Am. Jur., Fraud and Deceit, § 278, p. 122). Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Christ, JJ., concur.