131 N.Y.S. 623 | N.Y. App. Term. | 1911
As an action for fraud must be based upon a false representation as to an existing fact, and not upon a promise to be performed in the future, the complaint in this case did not, therefore, set up a cause of action for false and fraudulent representations. It does, however, set up a cause of action for breach of contract, disregarding all the immaterial allegations therein relative to the alleged false statements of the defendant. If, therefore, the averments set up in the complaint were proven upon the trial, the court would have the power to grant the relief asked for therein and embraced within the issues. The complaint should not have been dismissed, and the judgment must be reversed.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.
