175 A.D. 125 | N.Y. App. Div. | 1916
This is an action to recover damages for fraud and .deceit. The plaintiff is a vocalist and she was employed to sing in the choir of the Fifth Avenue Baptist Church in the city of New York for the period of one year from the 1st of May, 1913, at an annual salary of $950. The contract was in writing and was made by the music committee of the church apparently under delegated authority from the board of trustees. Mr. Spencer was chairman of the music committee and defendant was the secretary. The plaintiff predicates her cause of action on representations alleged to have been made by the defendant on the first Sunday of January, 1914, and on other occasions subsequent thereto with respect to the renewal of her contract for another year beginning on the 1st day of May, 1914. She had been employed by the church the two preceding years under a written contract. She alleges that she had been customarily advised in advance by the defendant as secretary of said committee of the action and determination of the committee with respect to her being re-engaged for the succeeding year, and that on the 1st day of January, 1914, and on numerous other occasions thereafter, “ this defendant assured this plaintiff of it having been decided that she was to be re-engaged as contralto and choir member of said Fifth Avenue Baptist Church, beginning May 1st, 1914,” and that she was requested by the defendant “not to seek or arrange for the coming year with any other party, parties or church; ” that each and every of the statements so made by the defendant was false and was known by him when made to be false, and was made with the intention to deceive the plaintiff, and was ‘ ‘ intended to, and did convey to plaintiff, that he, the defendant, had actual knowledge of the matters stated and represented, when the defend
After counsel for the plaintiff opened the case to the jury, counsel for the defendant moved for a dismissal of the complaint on the ground that the action was necessarily predicated on a contract for the plaintiff’s employment which was void under the Statute of Frauds, inasmuch as it was a contract for the performance of services for one year from the first day of May, long after the date of the alleged representations, and, therefore, was not to he performed within one year from the making thereof. The motion was denied and at the close of the evidence a motion was made for a direction of a verdict in favor of the defendant on the ground, among others, that the plaintiff had introduced no evidence that the defendant made thése statements with intent to deceive the plaintiff. I am of opinion that the court erred in denying the motion to dismiss the complaint. In one view of the testimony of the plaintiff she claims to have understood that the defendant made the contract for the Fifth Avenue church, but manifestly she could not recover on that theory, for if he assumed to make the contract and was, as she claimed, authorized to make it, then the contract was void under the Statute of Frauds, and on that theory there would he no false representations, unless it he an implied representation with respect to his authority, and the contract, if authorized, being void, that would not give rise to a cause of action. If, according to the allegations of the complaint, which are not, I think, supported by the evidence, he represented that the music committee had decided to retain the plaintiff, even then it is difficult to see upon what theory she could recover, for, there being no valid contract, at most it would be a mere representation that the music committee had decided to make the contract; and it is
Aside, however, from any question with respect to the sufficiency of the complaint, the evidence does not support the cause of action attempted to be alleged. There is no evidence that false representation was made by the defendant with respect to her re-engagement by the church or that he intended to deceive the plaintiff. It is evident that he was desirous of having the plaintiff remain in the choir of the Fifth Avenue
Clarke, P. J., and Dowling, J., concurred; Smith and Davis, JJ., concurred on the ground last stated.
Judgment reversed, with costs, and complaint dismissed, with costs.