Fieseler v. Stege — 67 N.Y. St. Rep. 571

Majority

p. 571

Nettis Fieseler, App’lt, v. George H. Stege, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 13, 1895.)

Headnote

Pleading — Fraud.

A complaint, in an action to set aside a chattel mortgage and a judgment which alleges an agreement that plaintiff was to give defendant a chattel mortgage of $250 in full settlement of his judgment against her husband, that, in pursuance of the agreement, she unfamiliar with legal papers and unable to read English, signed papers presented to her on the assurance and in the belief that she was signing said chattel mortgage, that defendant, fraudulently taking advantage of her ignorance, procured her to sign a confession of judgment for §1,464.45 and a chattel mortgage to secure such amount, and that judgment was entered on the confession and the chattel mortgage filed, is not demurrable on the ground of not stating a cause of action for fraud.

Appeal from a judgment, sustaining a demurrer to the complaint.

Horace Secor, Jr., for app’lt; Uriah W. Tompkins, for resp’t.

The complaint in this action alleged the recovery of a judgment against the plaintiff’s husband by the defendant and one Behrman on or about November 17, 1891, for $1,464.45, and a levy by the sheriff of Kings county under said judgment upon property belonging to the plaintiff, and an agreement that the plaintiff should give to the defendant a chattel mortgage upon her property for $250 in full settlement of the said judgment. The third and fourth allegations of the complaint were as follows :

‘‘(3) That plaintiff was unfamiliar with legal papers, and was unable to read. English; and that in pursuance of said agreement she signed such papers as were presented to her, on the assurance and in belief that she was signing said chattel mortgage. (4) On information and belief, that the defendant, fraudulently taking advantage of plaintiff’s ignorance, procured her to sign a statement for the entry of a judgment by confession in his favor, dated August 3,1892, for the sum of $1,464.45 (being the amount of the aforesaid judgment against her husband), with interest from November 17, 1891; and also procured her to sign a chattel mortgage in his favor, dated August 3, 1892, to secure the payment of $1,464.45 three years from date, with interest from November 17, 1891.”

It further alleged the entry of judgment against the plaintiff upon confession in the supreme court on August 3, 1892, and the filing of a copy of said chattel mortgage in the office of the register of Kings county on the same day;' that said confession and mortgage both stated that they were given in satisfaction of the judgment against plaintiff’s husband, and that said judgment had been satisfied, and that her said husband was insolvent. The relief demanded was that said mortgage and judgment be declared void, and canceled of record, and that the original chattel mortgage be delivered up and canceled. To this complaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the special,term, and the plaintiff has appealed to this court.

p. 572

> While the facts upon which the charge of fraud rests might with propriety be set out more specifically by the plaintiff, we are of the opinion that a cause of action is stated, and that the demurrer should have been overruled. In the fourth paragraph of the complaint the plaintiff alleges that the defendant, fraudulently taking advantage of her ignorance, procured her to sign the confession of judgment'and the chattel mortgage. The ignorance' of which advantage was taken was her inability to read English,, which fact is alleged in the third paragraph; and the act which constituted the fraud is alleged to be “the assurance” that she with signing “said chattel mortgage,” which meant a chattel morgage for $250. The word “ assurance ” is there used to mean “ representation,” “declaration,” or “persuasion,” and such declaration was made to her by the person presenting the paper. Such is the fair meaning of the allegation that “she signed such papers as were presented to. her on the assurance * * * that she was signing said chattel mortgage.” While it is not alleged that the defendant, was the person who made the representation, it is plain that it was-either him, or some one acting for him; and, in either event, the' false representation or declaration was a fraud' which would vitiate the transaction, and justify the relief" which the plaintiff sought. The fraudulent acts which induced the execution of the two instruments which the plaintiff sought to have set aside were therefore sufficiently alleged, and the demurrer was not well taken.

The judgment should be reversed, the demurrer overruled, with costs of trial, and the defendant have leave to answer in twenty days upon payment of costs.

All concur.