Kelly v. Gould — 6 N.Y.S. 845

Majority

p. 845

Kelly v. Gould et al.^[1]

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

Deceit—Liability of Drawer to Assignee of Draft.

Defendants, who were building a railroad, obtained the incorporation ot a construction company, which was never organized, and was irresponsible, and procured contractors to contract with its pretended agent by false representations that money had been obtained in Europe with which to build the road. The chief engineer, as agent of defendants, drew drafts on the agent of the construction company, for work done under the contract, and had them cashed at a bank where they had done business before, by exhibiting the contract with the construction company, and detailing the statement made that money had been obtained in Europe. Held, that the bank’s assignee of the drafts could sue for the fraudulent representations.

Appeal from special term, New York county.

Action by Eugene Kelly against Jay Gould, the Mexican Oriental International & Interoceanie Bailroad Company, the Mexican Southern Bail way Company, foreign corporations, and others, for false representations, whereby they obtained money on drafts drawn on an irresponsible company. From an interlocutory judgment overruling demurrers defendants appeal. For opinion of O’Brien, J., at special term, see 2 if. Y. tiupp. 600.

p. 846

Argued before Van Brunt, P. J., and Bartlett, J.

Vanderpoel, Green, Cuming & Goodwin, {John Yard, Ahnon Goodwin, John F. Dillon, and David Keane, of counsel,) for appellants. Ewing c6 Southard, for respondent.

Per Curiam. The interlocutory judgment is affirmed, with costs, upon the opinion of the court below, with leave to the defendants to withdraw their demurrers, and answer within 20 days on payment of the costs of the appeal and of the court below.