concurring:
Under the law of New York, where a party has culpably or negligently asserted a fact and by such assertion has intentionally induced a change of position by another in reasonable reliance upon the asserted fact, that party will be estopped from subsequently denying the fact if such denial will cause injury to the party which so relied. Brookhaven v. Smith, 118 N.Y. 634, 23 N.E. 1002, 7 L.R.A. 755 (1890) (plaintiff estopped from denying defendants’ title to land); see Plumb v. Cattaraugus Co. Mutual Insurance Co., 18 N.Y. 392 (1858) (contract action: facts support inference of negligence by both parties); see also Romano v. Metropolitan Life Insurance Co., 271 N.Y. 288, 2 N.E.2d 661 (1936) (rule applied even to faultless misleading); cf. Moore v. Metropolitan National Bank, 55 N.Y. 41, 47 (1873); 21 N.YJur., Estoppel, Ratification and Waiver § 50-52 (1961). Judge Pratt found (and it is unquestionably true) that Alden was negligent in entering into new financing agreements without obtaining any documentation terminating the prior inconsistent agreements. The chief executive of Alden signed documents without even reading them, which documents permitted Intertel to accomplish the fraud. Alden therefore came within the principle cited above which justifies affirmance of Judge Pratt’s denial of relief to Alden.
We need not consider the denial of relief to Dolphin since Dolphin has not appealed.
Accordingly, I concur in affirming Judge Pratt’s decision.