112 N.Y.S. 745 | N.Y. App. Div. | 1908
The plaintiff alleges that he was in the employ of the firm of A. O. Brown & co., who are defendants in this action; that the firm -had become interested in certain gold and - copper, lands in the Republic of Santo Domingo and caused the defendant, the San Domingo Gold and Copper Company to be incorporated with a capital of $64,000,000; that the defendants sold a. large amount of ' stock of the said company and received Upwards of $500,000 thére
Tho defendant the San Domingo Gold and Copper Company was made a party defendant, and it interposed an answer admitting
-The learned judge in overruling this demurrer said that it was difficult to determine whether the plaintiff seeks to recover for deceit, or on a promise to repay the plaintiff the money he expended, or in equity to enforce a trust on the funds now in the hands of the defendants. But we think that although the complaint contains immaterial allegations there is but one cause of action alleged, which is to recover damages for fraud. The amount alleged to have been paid for the stock was $5,000. The plaintiff has made no tender of the stock and made no demand for a return of this sum ; makes no claim to rescind the contract, but simply alleges that this purchase was induced by false and fraudulent misrepresentations, and seeks to recover the damages sustained by him in consequence of the fraud. The complaint alleging that the defendants made these representations it would appear that a good cause of action was alleged as
The judgment appealed from is, therefore, reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to amend the answer within twenty days on payment of such costs.
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend, on payment of costs.