70 N.Y.S. 873 | N.Y. App. Div. | 1901
On demurrer these allegations of the answer are entitled to every -legal intendment fairly embraced therein. The sole question for oúr consideration is whether they are sufficient to constitute a defense. Defendant has elected to retain the premises conveyed to Mm, thereby affirming the contract, and to counterclaim Ms damages an tort. This he may do provided his pleading is sufficient. (Krumm v. Beach, 96 N. Y. 398.) It is necessary for a party seeking to recover or offset damages on this ground to allege and prove the making of false representations with knowledge of their falsity, by which he was deceived and upon which he relied, and in consequence of which he sustained damages. (Arthur v. Griswold, 55 N. Y. 401, 410; Oberlander v. Spiess, 45 id. 175; Wakeman v. Dalley, 51 id. 27; Lefler v. Field, 52 id. 621; Dubois v. Hermance, 56 id. 673; Brackett v. Griswold, 112 id. 454, 467.)
In Brackett v. Griswold (supra, 467) the court say : “ There is no doubt or question as to what elements are requisite to sustain an action for false pretenses. The essential constituents of such an action have been understood from the time such actions were first maintained. They are tersely stated by Church, Ch. J., in Arthur v. Griswold (supra), viz., £ Bepresentation, falsity, scienter, deception and injury.’ There must have been a false representation, known to be such, made by the defendant, calculated and intended .to influence the plaintiff, and which came to his knowledge, and in reliance, upon which he, in good faith, parted with ..property or incurred the obligation which occasioned the injury of.which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery.”
Judged by this rule the defendant’s counterclaim cannot be sustained. It does not allege scienter on the part of appellant’s grantor, or any intent to deceive, or a reliance on the representations by respondent in making the contract or accepting the deed. It does not even allege that the representations were made prior to the •execution of the contract and it is doubtful whether it is sufficiently alleged that they were false. The allegation is that after defendant came into possession of the premises, which presumably was sometime subsequent to the execution of the contract, he “ ascertained that said premises were not fully rented as represented and
It follows that plaintiff’s demurrer was improperly overruled and the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to defendant to amend the answer within twenty days upon payment of the costs of demurrer and of this appeal.
O’Brien, Ingraham^, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs in this court and in the court below.