Smith v. Smith , 38 N.Y.S. 551 ( 1896 )

Putuam, J.:

We think that the complaint states a cause of action for an alleged fraud. The plaintiff therein sets forth the representations made by the" defendants as to their responsibility;. that said representations' were fál'sé. and fraudulent to the knowledge of the defendants, and made wrongfully and willfully with intent to deceive the plaintiff ; that he, believing such false-representations made by the-defendants to be true, loaned them the sum of $150, relying upon-"the .repre-r sentations made by them as to their responsibility, and took the noté attached-¡to the complaint; that payment, of -said note was. duly demanded by plaintiff of the defendants and refused, wherefore.plain* tiff demands judgment for $150 and interest.

As said in Ross v. Mather (51 N. Y. 108-110) “ the complaint contains all the elements of a complaint for a fraud.” It does - not set forth a, cause of action on a promissory note, but one arising from certain fraudulent representations made by the defendants, known by them to be false, with intent to defraud the plaintiff, and by which he-was induced to advance $150 and take the note in question,, and hence was defrauded and damaged to the amount thereof. • -

Under this complaint, on the judgment rendered by the justice of the peace, that officer-was authorized to issue an execution against the persons of the defendants by virtue of the provisions of sections '2895 and 3026 of the Code of Civil Procedure, and in the transcript delivered' to the plaintiff he properly inserted the words a defendants liable to' execution against their persons.” ;

Our attention is called to a similar complaint in Peck v. Root (5 Hun, 547), which was held to set forth a cause. of action in tort* (See, also, Combs v. Dunn, 56 How. Pr. 169 ; Freeman v. Leland, 2 Abb. Pr. 479.) Hence the gravamen of the action, as stated in the complaint, being for fraud, the court below was not authorized to allow a recovery for a breach of contract. (Ross v. Mather, 51 N. Y. 108; Barnes v. Quigley, 59 id. 265; Truesdell v. Bourke, 145 id. 612-617.) There are a class of cases, some of which are cited and referred to by the learned counsel for the respondent, holding that where the gravamen of an action is breach of contract, the addition of irrelevant or unnecessary allegations of fraud in the complaint will not affect the nature of the action or the remedy therein. (Graves v. Waite, 59 N. Y. 156; Tuers et al. v. Tuers, 100 id. 196.)

The distinction between such cases and the one under consideration is noticed by Finch, J., in Salisbury v. Howe (87 N. Y. 134).

In this case the complaint clearly sets forth a cause of action to recover damages alleged to have been sustained by the plaintiff by reason of the fraudulent representations of the defendants. Had the plaintiff simply counted on the note described in the complaint, the defendants might not have interposed a defense to the action. But they were compelled to defend the action actually brought by the plaintiff, as stated in his complaint, or suffer a judgment adjudging them guilty of fraudulent representations, under which they were liable to be arrested. So, when a recovery was had against them in the Justice’s Court they were compelled to appeal to the-County Court. 'Under the circumstances the disposition of the case by the court below, allowing the plaintiff on the trial to-aban don his claim for damages for the alleged false and fraudulent representations of the defendants and recover as in an action on the note, was not only unauthorized, but unjust to the defendants.

We are of the opinion that the court below was right in denying the motion of the plaintiff to amend the complaint, on the ground that an amendment on the trial substituting a different cause of action from that stated in the complaint is unauthorized. (Freeman v. Grant, 132 N. Y. 22-29.) This is especially the case on a, new trial in the County Court on an appeal from a Justice’s Court.

The judgment should be reversed and a new trial granted, with: costs to abide the event.

All concurred.

Judgment reversed, new trial granted, costs to abide the event.