| N.Y. App. Div. | Apr 15, 1936
Order granting plaintiff’s motion for a preference reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The order granted a preference on the ground that the action was on contract “ within the purview of Rule 6 of the Rules of the Supreme Court, Kings County.” That rule states, in part, that “ any action on contract * * * may be advanced to any Day Calendar.” Although it grows out of a contractual relationship, this action is not laid in contract. The parties made an agreement, several times renewed, pursuant to the provisions of which the plaintiff, for services rendered, should receive a percentage of the net profits of defendant’s business. In the payment of that percentage, the complaint specifically alleges fraud and deceit. It states that defendant represented the amounts paid to be justly due to the plaintiff; that the representations were false; that defendant knew them to be false; that they were made with the intention of defrauding plaintiff; that plaintiff believed them to be true; that he relied upon them, and that he was defrauded. The action is clearly one for fraud and deceit and it does not come within the purview of rule 6. Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.