38 N.Y.S. 69 | N.Y. Sup. Ct. | 1896
The plaintiff sues to recover "damages which, he alleges, have been caused by certain fraudulent representations, made by the defendant, set forth as such in the complaint, in reliance upon which and iii 'the belief of their truth he made a loan to another upon the security of a leasehold estate. The defendant demurs on the ground that the complaint does not set forth facts sufficient to constitute a cause of
With the exception of the statement by the defendant that -he had a cash customer for the lease, who was then- ready and willing to purchase the same at a bonus of $25,000 in cash, all of the representations^ were an expression „ óf - personal opinion iii respect to the value of the property, or in respect to his ability to sell, the property, or were promissory in their nature. It is well settled that such statements are not sufficient upon which to predicate such an action as this. Ellis v. Andrews, 56 N. Y. 83. As was said by Judge Grovek, in this casé (p. 86): “ Upon the question of value the purchaser must i’ély upon his own judgment, and it is his folly to rely upon the representations. of the vendor in that respect.” Actionable fraud consists in misrepresentation or concealment as to the existence of nonexistence of some fact or circum
The allegation, however, that the defendant represented he had a Cash customer for the lease, who was then and always ready and willing to purchase the same at a bonus.of $25,000-in cash, presents greater difficulty, This undoubtedly involves the assertion of an existent fact. It-becomes, therefore, necessary to- consider its. materiality and in • what respect it could have operated upon the mind of the. plaintiff in inducing action on his part. I think it is well, settled that a statement in- respect to the market price of an article is such a representation as to support- an action for its falsity. As demand, fixes the market price, the statement of a-fact tending to show that the article in question can- at the time be sold for a certain, sum.is a most important element -in- determining its--value,- and a careful and prudent person believing such a statement to be true would be justified in the opinion and-belief that .the property was worth at least the ■ amount which another was -then ready and willing to pay for it. In this sense I think that" the. statement made by the defendant - in this regard, assuming it to be falsej as we must for' the purposes' of this. demurrer, was actionable. • . '
Except for another objection to the complaint, which-1 deem to bé fatal, I'should, therefore, overrule the demurrer! It" is, essential to a cause of action of this character that, in addition to the falsity of the representations and the reliance upon them by the plaintiff, the latter should- aver and prove that, he has suffered damages by reason of the deceit ■ which has been’ practiced-upon him. The complaint is silent upon this point. The -plaintiff alleges that in reliance upon the representations in question.he made large advances.to the lessee upon said lease as collateral security, amounting in the aggregate to the sum of $9,412.50. He does not allege that the advances tvhich lié made to.the lessee are due and payable, or that -the
In the case last.cited certain fraudulent representations were made which induced the plaintiff to indorse á note. An- action was brought to recover damages for the alleged fraud before the note matured. . It- was- held, that the action was premature. Colt, J., in giving the opinion of the court, states -: “ If the holder receives his pay from the makers, through- the mort-. gaged security or otherwise, the plaintiff will have suffered no actionable wrong. There will have been no concurrence Of damage with fraud within the rule .upon which such actions áre founded.”
The demurrer must, therefore, be sijstained, with costs, with leave "to the plaintiff to serve an amended complaint. within twenty days after service upon him of a -copy of the interlocutory judgpient, on payment of costs: -
Demurrer sustained, with costs, with leave to plaintiff to amend.