Woolsey v. Sunderland — 47 A.D. 86

Majority

p. 86

Amelia P. Woolsey, as Committee, etc., of Lewis Fowler, an Incompetent Person, Respondent, v. William H. Sunderland, Appellant.

Headnote

A complaint alleging fraud must state the facts—sufficient designation of causes of action demurred to. . . •

A complaint which alleges that the defendant “by trick and device or deception or otherwise, and while said Fowler was helplessly intoxicated and confined to his bed” at the defendant’s hotel, “falsely and fraudulently'obtained from said Fowler- $1,200,” purports to state a cause of action based upon fraud, and is demurrable, as the facts which constituted the fraud are not stated.

Where a complaint attempts to set up two causes of action, the averments as to the first cause of action being in a paragraph numbered II, and those relating to the second cause of action in a paragraph nujnbered III, with each of which, in order to make the complaint intelligible, it is necessary to read paragraphs 1 and IV, a demurrer to “ paragraph numbered II and paragraph numbered III” sufficiently ‘designates the causes of action demurred to.

Herrick, J., dissented.

Appeal by the defendant, William H. Sunderland, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of March, 1899, upon the decision of the court, rendered after a trial at the Ulster Special Term, overruling the defendant’s demurrer to paragraph numbered II and paragraph numbered III of the complaint, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 20th day of March, 1899, overruling said demurrer.

J. W. Atkinson, for the appellant.

J. W. Securing, for the respondent.

In the first cause of action to which the defendant demurs, the act upon which the plaintiff relies is substantially stated as follows: That the defendant “ by trick and device, or deception or otherwise, and while said Fowler was helplessly intoxicated and confined to his bed ” at the defendant’s hotel, etc., “ falsely and fraudulently obtained from said Fowler $1,200.” It is claimed by tlie defe'hd.ant that such averments do not state facts sufficient to sustain an

p. 87

action for fraud. The respondent’s counsel, in substance, replies that this is not a cause of action based- upon fraud, but that the charge fairly interpreted is to the effect “ that the defendant Sunder-land took advantage of Fowler while he was helplessly drunk and got $1,800^[1] away -from him.”

' I cannot agree with this interpretation. The gist of the averment is that the defendant “fraudulently obtained from said Fowler $1,200.” That phrase does not suggest that he took it by force, or secretly and without Fowler’s knowledge. The only fair meaning is that, by some sort of deception, the defendant induced Fowler to deliver the money to him. Clearly the action is based upon an alleged fraud on defendant’s part, and I am of the opinion that defendant’s demurrer is well taken.

The averment that he “ fraudulently obtained ” the money by “ trick and device, or deception or otherwise,” adds no strength to the allegation of fraud. It conveys to the defendant no information whatever as to what particular acts of his the plaintiff complains; as to what acts the plaintiff bases her charge of fraud upon. It is a familiar rule that the facts which constitute the fraud, and not the mere legal conclusion that a fraud has been perpetrated, must be stated. (Knapp v. City of Brooklyn, 97 N. Y. 520 ; Wood v. Amory, 105 id. 278, 282.) And in the complaint before us there is a clear disregard of this rule. Indeed, the respondent’s counsel would, I think, agree that this complaint' cannot be sustained as one in fraud. He seeks rather to sustain it by striking out the averment of fraud and construing it as one for a conversion or unlawful taking.

It is urged that the demurrer is bad in form.

" The complaint attempts to set up two causes of action, one for taking $1,200, and another for taking $600. The averments as to taking the $1,200 are in a paragraph numbered II. Those as to taking the $600 ai i in the same phrase, but at another time, and are in another paragraph numbered III. With each one of them, in order to make it intelligible, the paragraphs numbered I and IV must be read. Inasmuch as the complaint is di-awn in that manner, the defendant has sufficiently designated the causes of action to which he intends to demur, by referring to the second and third

* Sic.

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paragraphs. He follows the same method of designation that the complaint follows, and assumes, as the plaintiff does, that the first and fourth paragraphs will he read with each.

I conclude that the demurrer was well taken to each of the causes of action, and that the judgment overruling the same should be-reversed..

All concurred, except Herrick, J., dissenting.

Interlocutory judgment reversed, with costs, and- demurrer sustained, with costs, with usual.leave to amend upon payment of costs.

Cases cited

Knapp v. City of Brooklyn 97 N. Y. 520 N.Y. 1884-12-16 p. 87