51 Barb. 116 | N.Y. Sup. Ct. | 1867
The complaint in an. action for deceit or fraud in the purchase or sale of property induced or procured by false representations— and such is this action—must in substance state the representations, and aver their falsity, and that they were made with intent to deceive the plaintiff and induce him to make the purchase or trade in question, and that they did induce such trade, to the plaintiff’s injury. Deceit or fraud with damages gives a good cause of action. Since the case of Pasley v. Freeman, (3 Term Rep. 51,) this has been settled law, The complaint in this action contains two counts. The demurrer is to each and to both counts upon the ground that they do not respectively state facts sufficient to constitute a cause of action. The representations made, and their falsity, and that the defendant knew of their falsity, are clearly and positively stated with sufficient distinctness, in both counts, and no question is made in respect to these allegations. The chief objection to the complaint urged on the argument in support of the demurrer was that the complaint does not, in either count, sufficiently aver that the false representations were made with intent to deceive the plaintiff) or to induce him to purchase the stock in question, and that the damages are not alleged with sufficient certainty. In Addington v. Allen, (11 Wend. 402,) it was held that a complaint in an action for false representations must aver that the defendant made the representations with an intent to deceive and defraud the plaintiff. Neither count in this complaint contains such averment, in express terms, and if the Code has not changed or modified the rules for the construction of pleading in such cases, this objection must prevail. ' In the case of Addington v. Allen the objection was held valid, after verdict, and the judgment arrested for such defect in the declaration. "Within this case and numerous others following it since, in this court and the Court of Appeals, I do not think the first count in this complaint can be
The whole complaint is loosely drawn, and its statements - are more or less wanting in logical and technical precision and explicitness, but in view of thé liberal rules which we
J. C. Smith, Welles and E. D. Smith, Justices.]