Bird v. Lanphear , 42 N.Y.S. 623 ( 1896 )

HARDIN, P. J.

Plaintiffs complaint contains extensive and elaborate allegations of fraudulent acts and schemes and devices of the defendants, whereby they have obtained possession of moneys of the plaintiff and others, and induced the plaintiff and others to enter into contracts for the purchase of three parcels of real estate in Tonawanda, Erie county. Plaintiff seeks to have an accounting of the moneys which, he alleges, the defendants have obtained by means of the false and fraudulent representations practiced upon him and his associates. The plaintiff invokes the equitable jurisdiction of the court. See Refining Co. v. Fancher, 145 N. Y. 552, 40 N. E. 206. There is no allegation in the complaint that the plaintiff was one of the purchasers of block 7, nor that he advanced any moneys towards the purchase thereof. It is averred in the complaint that the following persons entered into an agreement for the purchase of block 7, to wit: Horatio Gilbert, W. E. Tuttle, Addie B. Furman, Thomas D. Welch, Everett S. Copeland, Milton J. Baker, John R. Rose, Arthur C. Tadder, Alexander Lieb, William B. Kernan, F. Y. Combs, Phillip N. Nast, Jr., and others. It will be observed that in this allegation there is no allegation that the plaintiff was one of the purchasers. Nor is there any definite and specific allegation that he has any interest in block 7. While it is difficult to see that the plaintiff has any ground of relief predicated upon the allegations relating to block 7, it is equally difficult to reach the conclusion that the complaint does not state facts “sufficient to constitute a cause of action.” The plaintiff seeks to have an accounting, and alleges the representations, and their effect upon him, and that by means of the representations he was fraudulently induced to part with his money; and that by means of the false and fraudulent schemes concocted and practiced by the defendants he is entitled to relief.

2. It is made a ground of demurrer that the defendants Erwin H. Lanphear, Arthur C. Tadder, and Earl M. Lanphear were not joined as defendants as trustees. The allegation seemed to be sufficiently broad to indicate that their liability exists by reason of their fraudulent practices; and seemed to be sufficient to sustain the complaint against them in that aspect, not only for moneys had and obtained by means of the fraud, but to render them liable to account as trustees under the mortgage for anything they have received. The case of Calkins v. Smith, 48 N. Y. 614, furnishes little aid in the determination of the question in hand, as that was an action at law. The complaint in this case was apparently upheld by the general term in the Fifth department in the case reported in 92 Hun, 567, 36 N. Y. Supp. 1069. If we follow the tenor of the opinion in that case, we may uphold the complaint in the case in hand, and affirm the judgment at special term. ,

Interlocutory judgment affirmed, with leave to appellant to withdraw his demurrer upon payment of the costs of the demurrer and of this appeal.

ADAMS and WARD, JJ., concur.