Wilson v. Ryder — 32 N.Y. St. Rep. 305

Majority

p. 305

Henry Wilson et al., App’lts, v. Stephen Ryder, Resp’t.

(New York Common Pleas, General Term

Filed June 2, 1890.)

Headnote

|Fiíaud — False representations as to solvency.

In an action for false representations in procuring credit on a sale of goods, it appeared that defendant represented that' he owned property worth $20,000, free and clear of liabilities; that, in fact, he owned real estate worth between $20,000 and $30,000, subject to one mortgage, and personal property worth $1,000, and that his indebtedness was about $3,400. Held, that at most it could only be said that the representations were false in one respect, which was not acted on by plaintiff; that as it appeared that defendant was amply responsible to pay the debt incurred. by him, notwithstanding the incumbrance, the complaint was properly dismissed.

Appeal from judgment of the general term of the city court bf Hew York, affirming a judgment entered on the report of a referee in favor of the defendant and against the plaintiff dismissing the complaint herein.

The complaint alleges that on the 10th day of October, 1883, blaintiffs sold defendant certain goods upon defendant’s representations that he was worth $20,000 over and above all his debts Ind liabilities; that he owed few or no debts, and his property yas free and clear of liabilities. That plaintiffs, relying upon the ruth of such representations, sold, etc., to defendant goods, etc., If the agreed value of $240, for which defendant gave his proliissory note, which plaintiffs took upon such representations, that no lart of said note was paid except fifty dollars. Alleges said repre

p. 306

sentations so made were false and untrue, “ and were so made for the purpose of cheating these plaintiffs,’’

It appeared that defendant owned several tracts of land, on one £>f which there was a mortgage for $2,000, and a mortgage on another piece, since paid off. The testimony showed that such real estate was worth between $20,000 and $30,000, and that he also had personal property worth about $1,800, and that his total indebtedness was $3,412.73.

P. G. Taiman (John Fennel, of counsel), for app’lts ; George G Dutcher, for resp’t.

This action was brought by the plaintiffs to recover the sum of $200, and the plaintiffs allege, among other things, that false and fraudulent representations were made by the defendant at the time of the purchase of the goods in question, which led to their sale. There is no allegation in the complaint of any damage arising out of these representations. The action was referred to a referee, appointed by the city court, for trial, and upon such trial no proof was offered on behalf of the defendant. The plaintiffs’ testimony showed that the defendant •owned more than $20,000 above his debts and liabilities at the time that the representations were made, and that the representations made by him at the time of the purchase were substantially true. The most that could be said is that "the representations were false in one respect only; but this can' give no cause of action, for it does not appear that the plaintiff acted on that false representation or any damage arose by reason thereof. It also appears from the evidence that the defendant was amply responsible to pay the debt incurred by him, notwithstanding the incumbrance upon his property, and there was no proof offered as to his actual insolvency. There was therefore no question of fact in the case to have been submitted to a jury had the case been tried before it, and therefore the referee was right in dismissing the complaint.

The judgment should be affirmed, with costs.

Larremore, Ch. J., concurs.