90 N.Y.S. 680 | N.Y. App. Div. | 1904
Application lies, under section 546 of the Code of Civil Procedure, only when the precise meaning or application of the charges is not apparent. (See, too, Dumar v. Witherbee, Sherman & Co., 88 App. Div. 181, 183; Tilton v. Beecher, 59 N. Y. 176, 183.) The criticism of the learned counsel for the respondent is that the pleader may intend to charge either forgery or fraud or undue influence. The order in effect directs an election between them.
But I think that the forgery may be regarded as a species of fraud. In People v. Marion (29 Mich. 31) Campbell, J., says: “ The principal criminal element in forgery consists in the fraudulent purpose, and the proofs of fraud must be substantially the same in criminal and civil cases.” (See, too, Commnonwealth v. Starr, 4 Allen, 301,304.) Undue influence is also recognized as a species of fraud. (Green v. Roworth, 113 N. Y. 462,470; Matter of Will of Smith, 95 id. 516.) I think that the precise meaning or application of the allegations are definite and certain, namely, that the defendant, by fraud, procured conveyances of realty from the plaintiff.
The order should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.