245 F. 219 | N.D.N.Y. | 1917
(after stating the facts as above). The plaintiff in her brief filed on this motion by her attorney says:
“The action is one at law to recover for deceit. The complaint alleges, among other things, false representations made to the plaintiff, through and by means of which she was induced to sign waivers and a receipt in full for her interest in the estate. The things necessary to be pleaded in an action for deceit are: (1) Representations. (2) Falsity. (3) Scienter on the part of the defendant (4) Reliance. (5) Damage.
“Under all the cases, a complaint that sets out these several facts sets out a good cause of action. Brackett v. Griswold, 112 N. Y. 454-467. A cloud of cases could be cited to the proposition. The prayer for relief is a prayer for damages only — no equitable relief being asked. While the language of 'the prayer does not, of necessity, characterize -the complaint as either legal or equitable, it is a persuasive factor in determining the question. There was no occasion for the motion of the defendant. The complaint speaks clearly and truly what the plaintiff wishes. The motion should be denied.
“Saratoga Springs, N. Y., September 26, 1917.
“Edgar T. Brackett, Attorney for the Plaintiff.
“City Hall, Saratoga Springs, N. Y.”
This cannot, it seems to me, be regarded or treated as a suit in equity to set aside the proof and probate of the last-mentioned will on the ground of fraud and deceit. Must not such a proceeding be had in the court of probate jurisdiction and where the will was probated? All interested parties would have to be before the court. In an action at law to recover damages for deceit practiced on the testator and resulting in damages to a legatee, the gist is fraud and deceit. In a proceeding to set aside the probate of a will and have it adjudged invalid on the ground of fraud and misrepresentations practiced on the testator, false and fraudulent statements, if pertinent, made by any one, might be competent; while in an action at law to recover damages for fraud and deceit, resulting in damages, is it not necessary that the false and fraudulent representations relied on should have been made by the defendant in the suit or by his procurement? If this be so, then, assuming this to be an action at law for deceit, as plaintiff on this hearing asserts it to be allegations of false representations made by others, not speaking for or representing the defendant, or not made by his authority or procurement, are irrelevant, and should not be in the pleading. Therefore I think this complaint should be made definite and certain as to who made the representations set out in the complaint. The pleading should state what representations were made by the de
(There will be an order accordingly.
<&53jror other eases see same topic & KJ3Y-NUMBER in all Key-Numbered Digests & Indexes