Opinion
May, 1898.
M.S. Adler, for appellant.
Julius Henry Cohen, for respondent.
The plaintiff sued for the recovery of moneys alleged to have been obtained from him by the defendant by fraudulent representations. The justice decided that no fraud was shown and gave judgment in favor of plaintiff for the amount claimed "for moneys loaned." This was error. If the justice did not believe, as is obvious, that a fraud had been committed, it was his duty to dismiss the complaint, or, upon a conflict of the evidence, to render a judgment in favor of the defendant, and not give judgment for the plaintiff for the sum obtained ex contractu.
The form of the plaintiff's action being ex delicto, it was incumbent upon him to establish the fact that the defendant was guilty of fraud in contracting or incurring the liability, and his allegations were not sustained by the mere proof of a contract and its breach. Walter v. Bennett, 16 N.Y. 250; Ross v. Mather, 51 id. 108; Truesdell v. Bourke, 145 id. 612; Kley v. Healy, 9 Misc. 93; Smith v. Smith, 4 A.D. 227; Starr v. Silverman, 23 Misc. 151; 50 N.Y.S. 657; Wright v. Duffie, 23 Misc. 338 and citations.
The judgment cannot stand in any event, because it is not secundum allegata et probata. Fuld v. Kahn, 4 Misc. 600; Owens v. Flynn, 7 id. 171; Kley v. Healy, supra.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
BEEKMAN, P.J., and GILDERSLEEVE, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.