Twenty-Third Street Railway Co. v. Bay Ridge Ferry Co.

Headnote

Pleading.-—Valse representations.—Statements as to thing sold Tcnown to loth parties—effect of.

Appeal by defendant, from j udgment in favor of plaintiff, entered upon a verdict directed by court upon the pleadings. The complaint alleged that the plaintiff agreed to let a certain dock to the defendant, for a certain season, in consideration of the sum of one thousand dollars, and the

defendant agreed to hire said dock and to pay therefor the sum of one thousand dollars, and that the defendant took possession of said dock and had not paid the said sum of one thousand dollars, although often requested, etc. The answer admitted the making of the agreement, but alleged that the dock was of no use to the defendant for reasons alleged in the answer. The answer further alleged that defendant had not taken possession of and used said dock, in pursuance of the agreement, as averred by the complaint. By way of counter-claim, it further alleged, that at and before the making of the agreement the plaintiff, by its agents represented that the dock was in all respects easy of access and a desirable dock for the defendant, and that the same could readily and easily be used by the defendant, in its business, which was known to the plaintiff, of receiving and landing passengers by steamers named “Norwalk” and “Martin;” that in fact the defendant was unable to e ' use the dock, as plaintiff’s agent had represented it could be used, and said dock was not desirable, as plaintiff’s agent had represented it was, and it was not a dock from which defendant could receive and land passengers by said steamers. The reply denied the allegation of the counter-claim.

The court at General Term, said: “The action was in substance upon a promise to pay one thousand dollars. The answer did not show that this promise was not binding for want of consideration. It was immaterial whether the defendant took or did not take possession of the dock. If it did not, it chose not to enjoy an advantage which the agreement gave. As shown by Judge Febedmau, on the trial, the answer did not state any case fór a recoupment of damages, or for false representations. The alleged representations concerned the opinion of plaintiff’s agents t as to the bearing of facts, the existence or non-existence of which, was known or to be learned, by both parties equally.”