66 N.Y.S. 776 | N.Y. App. Div. | 1900
The learned referee seems to have interpreted the complaint in this action as stating only a cause of action based upon fraud; if he is right in'that construction then the judgment is right, for clearly no fraud was proven..
The action was commenced- m a Justice’s Court and the rules.applicablé to pleadings in that court are invoked. If it can by liberal construction be seen that the pleader intended to state and-prove an action upon contract and damages for a breach of contract-the nature . of tl[e action is not tortious. The-character which the judgment must bear, whether enforcible by execution against the body or only against the property of the debtor, is the proper , test of the nature of the action, and this test must necessarily be applied to the complaint .without reference to the proof, for the proof is no-part of the judgment roll.
The complaint alleges a contract made by defendant to furnish the material, “ erect and finish in workmanlike manner ” for plain
There are no other allegations in the complaint Avhich can be properly used to qualify this principal allegation. From this it would appear that, through deception practiced by defendant, unearned money was obtained from the plaintiff. She seeks to have that money returned. I am of the opinion that if plaintiff should prevail she would be entitled to a judgment enforcible by execution against the defendant’s body. It Avould be a judgment for obtaining money wrongfully and by fraudulent practices. It cannot be confined to the simple proportions of an action for breach of contract, the elements of a complaint in which are wholly embraced in alleging the contract, failure to perform, payment in advance or payment in ignorance of the failure.
I have reluctantly reached the conclusion that the judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.