Hartshorn v. Newman — 15 Abb. Pr. 63

Majority

p. 63

HARTSHORN a. NEWMAN.

Supreme Court, First District; General Term,

Nov., 1862.

Headnote

Damages bt Fraud.—Form of Summons.

In actions to recover damages for fraud and deceit, the summons should be for relief, according to subd. 2 of section 128 of the Code.^[1]

Thus in an action to recover damages for having induced plaintiff to buy a promissory note by falsely representing it to be a business note, a summons demanding judgment for a specified sum, according to subd. 1 of section 128, is irregular.

p. 64

Appeal from an order denying a motion to strike out the complaint.

This action was brought by William L. Hartshorn against Charles Newman and C. Belden Hall. The summons stated, that on failure to answer, &c., the plaintiff would take judgment for $400, with interest from Hay 26th, 1862. The complaint alleged that the defendants, conspiring to defraud the plaintiff, by sundry misrepresentations induced the plaintiff to discount a note of $287.40 ; that by reason of the matters set forth plaintiff had sustained damage in the sum of $400 for which amount judgment was asked. A motion-was made by the defendants to strike out the complaint as inconsistent with the form of the summons. Hr. Justice Ingraham denied the motion, and the defendants appealed.

Gideon L. Walker, for the appellants.

Edward Forbes Travis, for the respondent.

This action was against the .defendants for selling to the plaintiff a note, which they falsely represented to be a business note, &c., and claiming to recover from them, for the fraud and deceit, the value of the note so sold. On the hearing of the motion, I thought that as the plaintiff could only recover- the amount of the note and interest, he could take judgment for that amount, and no application to the court was necessary.

Hpon more reflection, however, I am satisfied that the note is to be considered only as inducement to the action, and the true cause of action is the fraud and deceit.

In such a case the application for judgment must be to the court, and the summons should have corresponded with the complaint. The cases of Ridder a. Whitlock ( 12 How. Pr., 208 ) and Tuttle a. Smith (6 Abbotts’ Pr., 329; S. C., 14 How. Pr., 395 ), are authorities on this point.

The order must be reversed and the motion granted, with $10 costs, with leave to plaintiff in twenty days to amend summons on payment of such costs, and without prejudice to the order of arrest.

Peckham and Leonard, JJ., concurred.