153 N.Y.S. 581 | N.Y. App. Div. | 1915
This action is brought to recover $3,642.95 damages for deceit.
The plaintiffs allege that their testator, who died on the 1st day of September, 1908, leaving a last will and testament, upon which letters testamentary were issued to them, was induced on or about the 5th day of June, 1908, by specified false and fraudulent representations made by the defendant, upon which he relied, to agree to pay to the defendant the sum of $11,283.65, to be used for the payment of certain indebtedness “ for labor and otherwise ” theretofore incurred for the erection of a mill upon certain mining properties owned by one Beal, situate in German Gulch, Silberia Mining District, Silver bow county, Mont., in consideration for which payment the defendant agreed that plaintiffs’ testator should have a twenty-two and one-half per cent interest in the defendant’s interest in said mining properties, which was falsely represented to be two and one-half per cent, and a twenty-two and one-half per cent interest in any and all profits that might be realized
The agreement is in the form of a letter written by Henry J. Braker to the defendant, and contains a written indorsement of an acceptance by the defendant. The letter, so far as material, recites in substance that Braker understood that the defendant was interested in a mining venture having for its object the exploitation of several placer and quartz mines located at the place specified in the complaint, all but two and one-half per cent of which had been deeded to the Montana Gold Mountain Mining Company, and that the defendant owned the remaining one-fortieth interest, and that a mill had been erected on the property on which indebtedness amounting approximately to $11,283.65 was owing, and against which certain liens had been filed; that in consideration of an agreement by Braker to pay the indebtedness to the extent of $11,283.65, he was to have a twenty-two and one-half per cent
The demurrer is upon the ground that it appears upon the face of the alleged cause of action set forth as a counterclaim that it “ does not state facts sufficient to constitute a cause of action.” Many objections of a somewhat technical nature are interposed to the counterclaim. It is not alleged in the counterclaim that the contract upon which it is based is the contract which it is alleged in the complaint the decedent was induced by fraud to execute, although the date and the nature of the contracts are the same. Nor is it alleged that the parties to the contract were the same, although it is alleged that the names are the same, and it appears by the counterclaim, as well as by the complaint, that the Braker who made the contract has died. The counterclaim does not show that the plaintiffs are the executors of Braker, although that fact is alleged in the complaint and admitted, but it is neither alleged nor referred to in the counterclaim, otherwise than appears by the title of the action. The general rule is that a counterclaim must be complete in itself. (Cragin v. Lovell, 88 N. Y. 258; Roldan v. Power, 14 Misc. Rep. 480. See, also, Reiners v. Brandhorst, 59 How. Pr. 91; Victory Webb, etc., Mfg. Co. v. Beecher, 55 id. 193; McKenzie v. Fox, 29 N. Y. St. Repr. 106; Douglass v. Phenix Ins. Co., 138 N. Y. 209; Sbarboro v. Health Department, 26 App. Div. 177; Davenport v. Walker,
The appellants contend that it is not alleged that the counterclaim existed at the time of the death of Braker, which they claim is essential where it is interposed against his executors. They rely on the provisions of section 506 of the Code of Civil Procedure, which provides that in an action brought by an executor or administrator, in his representative capacity, a demand against the decedent belonging to the defendant at the time of the death of the decedent may be set forth as a counterclaim, the same as if the action had been brought by the decedent. This objection is, I think, insuperable. The counterclaim does not show whether the disbursements for which it is interposed were made on the contract before or after Braker’s death. If they were made after, it would not be a proper counterclaim. (Jordan v. National Shoe & Leather Bank, 74 N. Y. 467; Throop’s Note on Counterclaim, 3 N. Y. Civ. Proc. Rep. 226; Peyman v. Bowery Bank, 14 App. Div. 432.) The respondent endeavors to meet this objection on the theory that Braker became' forthwith obligated to pay the entire ■ amount of $11,283.65 on the acceptance of the letter constituting the contract. I am unable to agree with that construction of the contract. The letter shows that the check inclosed with it covered the amount then due for labor; and it is quite clear that Braker did not obligate himself to pay the balance until notified that settlements had been arrived at with the remaining creditors, at which time he agreed that the defendant might draw on him. There is no allegation as to when those settlements were made, or that the defendant ever drew on the decedent in accordance With the contract. There is a further attempt to sustain the pleading on this point on the theory that the allegation in the counterclaim that the amount was duly demanded is an allegation by implication that the moneys had been paid by the defendant before the death of Braker; but the allegation that the amount was duly demanded cannot be construed as equivalent to an allegation that the defendant was entitled to the money at the time the demand was made. It merely means that if he was entitled to the money at that time he made a due demand therefor.
McLaughlin and Clarke, JJ., concurred; Ingraham, P. J., and Scott, J., concurred in result.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to serve amended answer on payment of costs in this court and in the court below.
