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De Silver v. Holden

50 N.Y. Super. Ct. 236 18 Jones & S. 236 Court N.Y. Super. Ct. Decision date 1884-04-07 English

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p. 236
EMILY DE SILVER, Respondent, v. HOWARD HOLDEN, Appellant.

Headnote

Demurrer—Misjoinder of causes of action—Valse representations.—Pleading.
An alleged cause of action, “that by false and fraudulent representations defendant had induced plaintiff to sign a bond, conditioned for the payment of $1,700, and also a mortgage upon plaintiff’s real estate, to secure the payment of the bond, which were made and executed to a third person by defendant’s request, to whom defendant delivered them, receiving from such third person $1,700, for the same,” may be joined in the same complaint with a second cause of action for the conversion of personal property of the plaintiff by the defendant (Code, § 484, subd. 6; Cleveland ®. Barrows, 59 Bar. 374). The plaintiff had a property in the bond after execution and before delivery (Decker ». Matthews, 12 N. T. 313), and the complaint alleges that defendant obtained the bond from her by false pretenses, thereby taking and tortiously converting the same.
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Decided April, 7 1884.
Upon demurrer, the presumption that plaintiff will be obliged to pay said bond, will be held sufficient to take the place of an allegation of damage. Where the complaint" avers “that with intent to deceive and defraud the plaintiff, defendant falsely and fraudulently stated and represented certain matters of fact, as to his own financial condition, and as to property owned by him,” etc., such an averment implies a charge that the defendant knew the representations to have been false, or that he knowingly made them (Marie v. Garrison, 83 N. T. 28).
Before Sedgwick, Ch. J., and O’Gormas, J.
Appeal from a final judgment in favor of plaintiff, entered- upon an order and interlocutory judgment overruling defendant’s demurrer to the complaint.
Defendant demurred on two grounds:
1. That causes of action are improperly united.
2. That the allegations as to the first alleged cause of action are insufficient, &c.
The facts appear in the opinion.
E. P. Wilder, for appellant.
I. Causes of action have been improperly united in this complaint (Code, § 488, subd. 7). The first cause of action is evidently for damages for obtaining a bond and mortgage upon real property by false and fraudulent representations. The second is a cause of action for failing to return a chattel after demand made therefor. The first is what was formerly known as an action upon the case for fraud and deceit. The second is what was formerly known as trover or conversion. The plaintiff’s counsel insists that both the causes of action may be included under subdivision 6, of section 484, to wit: “ Injury to personal property.” But this is impossible ; for the first cause of action relates to a supposed injury to real property, if to- anything, being an impairment of plaintiff’s title to certain real estate ; while the second cause of action relates to personal property, ;but in no manner alleges any “injury” to it. But assuming, if necessary, that the conversion of a chattel is in law an “ injury ” to personal.property, it never has been held that fraudulent
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representation whereby a plaintiff was induced to execute a bond and mortgage not yet due nor payable and by reason whereof plaintiff has not yet suffered the loss of a farthing, is an injury to personal “property.” The Code has defined, the term “injury to property” as an actionable act ‘ ‘ whereby the estate of another is lessened other than a personal injury or the breach of a contract” (§ 3343, subd. 10). The kinds of tort which may be united in one complaint under the Code are extremely few. It has been held that conversion, wrongful detention, and an action for accounting cannot be united (Thompson v. St. Nicholas Bank, 61 How. 163 ). Nor can a cause of action for malicious prosecution be united with one for false imprisonment, strikingly similar as those causes are (Nebenzahl v. Townsend, 61 How. 353 ). Nor a cause of action for an assault with one for slander, although the slander and assault were simultaneous (sse also Furniss v. Brown, 8 How. 191 ; Colvell v. N. Y. & E. R. R. Co., 9 How. 212 ; Ehle v. Huller, 10 Abb. Pr. 287 ; Maxwell v. Farnam, 7 How. 236 ; Flynn v. Bailey, 50 Barb. 73 ; McDonald v. Kountze, 58 How. 152 ; Hunter v. Powell, 15 Id. 221 ; Cobb v. Dows, 9 Barb. 230 ; Anderson v. Hill, 53 Id. 238 ).
II. The so called first cause of action does not set forth facts sufficient to constitute a cause of action; and this for the following reasons: First. The plaintiff is not damaged. It does not appear that she will ever be called upon to pay her bond or redeem her mortgage. They are not yet due. Non constat, but the defendant will do his whole duty in that behalf. In a civil action for fraud and deceit, damage is as essential to the action as fraud (Aberdeen v. Blackman, 6 Hill, 324 ; Gilbert v. Wiman, 1 Comst. 550; Wright v. Whiting, 40 Barb. 235 ). Second. The complaint does not allege that defendant knew his representations to be false when he made them. Non constat, but he honestly believed them to be true (Moore v. Noble, 53 Barb. 425 ; Robinson v. Flint, 56 Id. 100; Van Vliet v. MacLean, 23 Hun, 206 ).
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C. Bainbridge Smith, for respondent.
I. The causes of action are properly joined. They fall within the general provision of the Code of Civil Procedure termed “ For injuries to personal property” (Code Civ. Pro. § 484, subd. 6; Cleveland v. Barrows, 59 Barb. 364 ; Lovett v. Pell, 22 Wend. 369 ).
II. The maker of a negotiable promissory note can maintain an action for its conversion (Decker v. Matthews, 12 N. Y. 313 ; Develin v. Coleman, 50 Id. 531). In such a case the plain tiff'is entitled to recover the amount of the note as damages for its conversion without averring or proving that he has paid it to the holder. It is sufficient that he is liable to pay it (Id.).
III. The plaintiff will have to pay the bond and mortgage. The mortgagee paid the money on it in good faith (Aikin v. Morris, 2 Barb. Ch. 140 ).

The judgment appealed from was entered upon an assessment of plaintiff’s damages after a demurrer to the complaint bad been overruled and final judgment ordered for plaintiff. The appeal involves the correctness of the order overruling the demurrer. The demurrer was placed upon two grounds ; first, that causes of action were improperly joined ; and second, that the allegations of the first alleged cause of action are not sufficient to constitute a cause of action.

The first alleged cause of action was, that by false and fraudulent representations, the defendant had induced the plaintiff to sign a bond conditioned for the payment of $1,700, and also a mortgage upon plaintiffs’ real estate, to secure the payment of the bonds which were made to a third person by defendant’s request, to whom defendant delivered them, receiving therefor from the third person $1,700. The other alleged cause of action was for the conversion of personal property belonging to plaintiff.

The appellant’s counsel argues that the joinder is not justified by the code, unless by subdivision 6 of the 484th section, that provides that the plaintiff may unite causes of

p. 240
action for injuries to personal property. The further claim is, that the first cause of action is not for an injury to personal property.

Cleveland v. Barrows ( 59 Barb. 374 ), satisfactorily decides this point. The opinion is, “Fraud is a wrong, and if a party thereby obtains from another, property, it is an injury to the property of such other in the same sense precisely as though the wrongdoer had taken the property tortiously and converted it. The bond signed by- the plaintiff was her property, and the complaint alleges that the defendant obtained it from her by false pretenses. This only affected personal property, for the mortgage which affected the real property was distinct and different from the bond. That she had a property in the bond after she signed, and before it was delivered to the obligee by the defendant, is shown by Decker v. Matthews ( 12 N. Y. 313 ), and the cases which have followed it. There was therefore no misjoinder of causes of action.

The important objection to the sufficiency of the allegation to form a statement of a cause of action is, that the complaint does not aver directly that the defendant knew that the representations he made were false. But if the allegations imply that he knew they were false, it seems to be enough, under the case of Marie v. Garrison ( 83 N. Y. 28 ). It was said in that case, “Bearing in mind that what is implied in an averment is on demurrer to be taken as if the thing implied is directly averred, and that an argumentative pleading is not for that reason demurrable, we conclude, although not without some hesitation, that an averment of refusal to exchange does import that the other party offered to do that without which no exchange could be effected, viz., that he tendered the property or thing which was the consideration of that which he was to receive, and which he called on the other party to deliver.”

The complaint avers that with intent to deceive and defraud this plaintiff, the defendant falsely and fraudulently stated and represented certain matters of fact as to his own financial condition and as to property owned by him. These

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were things that the law would presume were within his knowledge. Such averments imply a charge that the defendant knew the representations to have been false, or that he knowingly made them. '•

There is another objection, that the complaint does not show, that the plaintiff was or will be damaged by the fact of the bond being delivered to the third person after having been obtained by 'the defendant. On the facts stated there is a liability upon the bond by the plaintiff to the third person, and a presumption that she will be obliged to pay, and no presumption that the defendant will indemnify ■her, after he has been guilty of the tort charged. Again, there are some damages, and the assessment of them is not under review.

Judgment affirmed with costs.

O’GIorman, J., concurred.

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