126 Misc. 597 | N.Y. Sup. Ct. | 1926
The individual defendant here moves to vacate an order of arrest, contending (1) that the papers on which it was granted are insufficient; (2) that the complaint fails to state a cause of action, and (3) that not more than one of the two causes alleged in the complaint is of a character that authorizes an order of arrest. The first cause of action alleges that this defendant by means of fraudulent representations induced the plaintiff, acting as agent for his mother, to purchase for her account fifty shares of stock for $5,000; that the mother thereafter delivered the shares to the plaintiff and assigned to him all her rights and claim against the defendant. The plaintiff concedes that no cause of action for deceit is stated in the first cause. The failure of the complaint to allege any damages and the fact that the prayer for relief asks for judgment for the full purchase price and not for the difference' between the value parted with and the value received (Reno v. Bull, 226 N. Y. 546) indicate that this concession is in accord with what seems to be the fact. Moreover, our Court of Appeals in Zabriskie v. Smith (13 N. Y. 322), apparently under the principles of the common law, laid down the rule that a cause of action for deceit is non-assignable, and we might, therefore, find an additional objection to the complaint. However, in Johnston v. Bennett (5 Abb. Pr. [N. S.] 331) the Superior Court, at Special Term, held that a cause of action in deceit could be assigned in view of the provisions of the Revised Statutes referred to in the opinion, and stated (at p. 332): “ When Zabriskie v. Smith (13 N. Y. 322) was decided, these provisions of the statute do not appear to have been called to the attention of the learned judge (Denio) who delivered the opinion.” The law has since become well established that causes of action in deceit are assignable. (Jackson v. Daggett, 24 Hun, 204; Haight v. Hayt, 19 N. Y. 464; Fried v. N. Y. Central R. R. Co., 25 How. Pr. 285; Wade v. Kalbfleisch, 58 N. Y. 282; Keeler v. Dunham, 114 App. Div. 94; Fox v. Hirschfeld, 157 id. 364, 368.) However that may be, the complaint is insufficient in law, even if viewed as one in deceit in any event because of the plaintiff’s failure to allege damage. But, if it be viewed as one
It may be that one who has received money or property through fraud can be sued on an implied contract to repay in cases where the plaintiff has received nothing and, therefore, has nothing to tender back. That seems to have been the situation in Valentine v. Richardt (6 N. Y. Supp. 197), where an order of arrest was sustained under subdivision 4 of section 549 of the Code of Civil Procedure, now subdivision 10 of section 826 of the Civil Practice Act. The court there said (at p. 197): “ If the defendant obtained by fraud from the mother of the plaintiff upwards of $10,000 of personal property, the law immediately implied a promise on his part to account to her for the same, and at any time thereafter she could have maintained an action against him upon such implied