100 N.Y.S. 891 | N.Y. App. Div. | 1906
- The complaint alleges that the plaintiff delivered to the Gallatin Hotel, at the instance and request of the defendant, coal at the agreed price and of the reasonable worth and .value of $253, which ■ amount was due and owing on or about the 15th day of November, 1904; that the said hotel was owned by the Gallatin Hotel Company and the said coal was delivered to said company at the defendant’s request, and said coal was used by the said Gallatin Hotel and the defendant promised and agreed to pay therefor; that the defendant, intending to cheat and defraud this plaintiff of and from a part of said sum so due as aforesaid, fraudulently and falsely represented and pretended to the plaintiff that the said Gallatin Hotel Company and the defendant were, insolvent, but that he could procure for the plaintiff fifty per cent of the amount due the plaintiff as aforesaid, if plaintiff would satisfy and discharge the said claim; that plaintiff, relying upon said statements and believing them, consented to accept fifty per cent of the amount due him as aforesaid, and thereupon the defendant paid the plaintiff the sum of $126.50 on or about August 12,• 1905, and induced the plaintiff to deliver to defendant an assignment of the plaintiff’s claim against the Gallatin Hotel Company, which said assignment was dated on or about the said 12th day of August, 1905 ; that in fact the Gallatin Hotel Company had prior thereto transferred and delivered to. the said Maas funds and property sufficient to pay the claim of the plaintiff in full and for that purpose, and the said Maas, .intending to cheat, deceive and defraud the plaintiff of and from a part of plaintiff’s claim as aforesaid, and fraudulently and deceitfully concealing from the plaintiff the true situation and facts, intending thereby to defraud the plaintiff of and from fifty per cent of his claim as afore.said, made the statements and representations hereinbefore referred to, and induced the plaintiff to deliver an assigmhent to said defendant for plaintiff’s claim as aforesaid, upon all of which statements arid representations, and in ignorance of the true facts, plaintiff relied, all to the damage of the plaintiff in the sum of $126.50; wherefore the plaintiff demanded judgment that the said assignment be canceled and set aside; that plaintiff might Jiave an accounting of the said amounts of moneys and property'received by the said Maas from the Gallatin Hotel Company for the .payment of plain tiff’s claim ;
There is no allegation in this complaint that the Gallatin Hotel Company made any contract with the plaintiff, bought anything from him, or owes anything to him. The allegation is as plain as language can make it that the plaintiff furnished coal to the hotel ' at the request of the defendant and upon his promise to pay therefor, not as guarantor, but as an original promisor. If the plaintiff had no claim against the Gallatin Hotel Company, as it is evident under these allegations that he did not, the assignment of such claim to the defendant is no bar to any action which he might have against the defendant upon the original delivery of the goods at his request and upon his promise to pay; and, therefore, there is no necessity for an equitable action to set aside, the said assignment upon the ground of fraud. If, in a direct action upon the original promise, said assignment should be set up or introduced as a defense, it could be attacked and would be of no avail. •
Nor does there seem to be any necessity for an accounting, for if the Gallatin Hotel Company was not indebted to the plaintiff I do not see that the plaintiff has a right to this accounting for any sums of money which the Gallatin Hotel Company may have paid the defendant.
Pleading, under the liberal rules of the Code, has reached a deplorable condition of ineptitude and uncertainty. But I do not think that a trial court should be called upon to spell out from this complaint a cause of action or determine whether it should be tried before a jury or before the court at Special Term.
The judgment appealed from should be affirmed, with costs in this court and in the court below, with leave to the plaintiff, within twenty days, upon the payment thereof, to serve an amended complaint.
Patterson, Ingraham, Laughlin and Houghton, JJ., concurred.
Judgment affirmed, with costs in this court and in the court below, with leave to plaintiff to amend on payment thereof.