Opinion
June 27, 1906.
Rockwood Salisbury [ Nash Rockwood of counsel], for the appellant.
Edgar T. Brackett [ William S. Ostrander of counsel], for the respondents.
The complaint having been dismissed as insufficient, the plaintiff is entitled to the most favorable construction of its allegations, and to the benefit of all that is directly or inferentially charged, or that may fairly be inferred from its allegations. ( Ellsworth v. Agricultural Society, 99 App. Div. 119.)
So read, the complaint shows that the defendants obtained the plaintiff's money by a trick, and by entering into an agreement with him which they never intended to fulfill; that the transaction upon their part was a fictitious scheme intended solely to obtain the plaintiff's money. The allegation of the making of the deposit, the refusal of the bill, and that thereupon the defendants refused to go to Saratoga and auction the goods, fairly appear to be a part of the same transaction, and for the purposes of the motion under review we should assume that at the time of paying the money the plaintiff immediately demanded a bill of the goods, which was then refused, and that then, as a part of the transaction of the payment of the money, the defendants, with the money in their possession, declared that they would not go to Saratoga and auction off the goods. The question argued and embraced in the motion for a dismissal as to whether fraud could be predicated upon a breach of the agreement to go to Saratoga and auction the goods, it being of a promissory character rather than a representation as to an existing fact, is not necessarily here. The defendants obtained the plaintiff's money by a contract which, immediately upon the receipt of the money, they, as a part of the fraudulent scheme, refused to fulfill on their part. That gave the defendants no title to the money, and the plaintiff was entitled to its return upon the demand then made. Treating it as one transaction, the defendants had no more right or title to the money than if they had snatched it from plaintiff's possession. The plaintiff was not called upon to take the goods to Saratoga and to request the defendants to come and auction them off, for the reason that the defendants never intended to go, and had in advance repudiated their agreement and refused to go, and the removal of the goods to Saratoga and a subsequent demand would have been unnecessary formalities. The defendants obtained possession of the plaintiff's money by a trick, and at the very time of obtaining it refused to carry out the contract upon their part and deprived themselves of any right to keep the money. The plaintiff was, therefore, entitled to recover it.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.