
    JOHN L. ROWE, Respondent, v. CHARLES G. PATTERSON, Appellant.
    
      ction on contract fraudulently contracted.—Allegations of fraud cannot he stricken out as redundant.—Oode Oiv. Proc. § 549, suhd. 4.
    The effect of the enactment of subdivision 4, of section 549, Code of Civil Procedure, is that a cause of action on contract fraucMently contracted is, for the purpose of pleadings and remedies, an action on the case, having the contract as one only of its facts. The fraud is a necessary element; therefore, the allegations showing it cannot be stricken out on motion as redundant and irrelevant to the cause of action on contract which would be left.
    
      It seems, that whether or not fraud be sufficiently alleged, is a question to be raised by demurrer.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided June 5, 1882.
    Appeal by defendant from an order denying a motion to strike from the complaint irrelevant and redundant matter.
    The complaint, as a first cause of action, alleged tiiat the defendant, on September 27, 1872, delivered his promissory note, payable to plaintiff or order, for money loaned to defendant by plaintiff. It then further alleged, “ that the said debt was created by the fraud of the defendant, that in order to induce the said plaintiff to make the said loan,” the defendant falsely, knowingly and with intent to defraud, made certain, representations as to his ownership of property, which the complaint specified.
    As a second cause of action, it was alleged that the defendant made, November 5, 1872, his certain other promissory note, payable to plaintiff, in these words, viz.: “New York, Nov. 5, 1872. On demand I promise to pay to John L. Rowe or order, $1,200, the same being a balance due him on purchase of an interest in patent ¡No. 69,028, heretofore assigned by James B. Bemarest to me at the request of said John L. ¡Rowe.”
    “This plaintiff further states that at the time of the creation of the said debt, he yet supposed the statements made by said defendant, as hereinbefore stated, were true, and upon the faith thereof accepted said note and parted with the consideration given therefor.”
    “ This plaintiff further states, upon his information and belief, that said debt was created by the fraud of said defendant, and at the time of its creation, the said defendant did not intend, ever to pay said debt or any part thereof.”
    The motion was to strike from the statements of the causes of action, severally, the allegations that referred to the alleged fraud of the defendant.
    
      Beach & Brown, for appellant.
    
      R. H. Shannon, attorney, and E. F. Bullard, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

By section 549 of the Code of Civil Procedure, as amended by chapter 542 of Laws of 1879, and in subd. 4,“a defendant may be arrested in an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability.”' If nothing further were enacted, the rules which were recognized in Neftel v. Lightstone (77 N. Y. 96) should be applied now. They refer to cases where a complaint sets out a cause of action upon contract, the allegations intermixed with other allegations that appear to claim an action for tort. That case held that if, upon the trial, the plaintiff proved a cause of action on contract, the complaint should not be dismissed, although there was no proof of any of the allegations as to fraud. Of course, on demurrer, such a complaint would have been sustained, because it alleged a cause of action on •contract, at least.

Since the case cited was decided, the section 549 •referred to has been passed, and it further enacts that " when such an allegation is made, the defendant can,not recover, unless he proves the fraud, and a judgment for the defendant is not a bar to a new action, to recover upon the contract only.”

The effect of this, in my judgment, is, that for the purposes of pleading and remedies, to be suited to different states of fact, an action on contract, fraudulently contracted, to use a concise term, is different from a •cause of action on contract, pure and simple. The former is, if well founded, in its consequences, essentially •an action in tort, the difference being that it starts with a statement of a contract, with allegations of fraud .as an accessory. An action of tort would have as its principal basis the fraud. Perhaps, but no decision as to it is made, the incidental fraud need not be, per se, actionable fraud; but the result secured by the section is the same as if it were, for unless it be proved, there can be no judgment founded upon the contract proved. The result seems to be that the cause of action specified in the section involves the existence of the fraud meant and described in the section, and that whether or not a fraud is alleged, is a question of law that may be raised by demurrer, on the ground that the complaint does not state a cause of action. Such a question could be made as to the several allegations intended to state the different causes of action. While, on the one hand, the defendant has the privilege of raising the question in this way, and perhaps on the trial, the plaintiff has a right to demand that his claim shall not be entirely passed on upon motion. If there be, in the allegations of fraud, irrelevant or redundant matters, they may be stricken out, as in ordinary cases. In such a situation it is always implied that there is something in the pleading, which on its own claims is sufficient to sustain the demand for judgment: otherwise, the matters objected to could not be claimed to be redundant, or immaterial or irrelevant.

If what has been said is correct, the last consideration is not met by a suggestion that a cause of action on contract would be left, and that, as to it, the matters are irrelevant and redundant. The action is not on the contract pure and simple. It is on the case, which has the contract as one only of its facts. The plaintiff claims to have a cause of action, which will entitle him, as of course, and without an order of arrest being issued, to an execution against the person. This claim, as has already been said, should not be determined upon motion, and as to it I am of opinion that there is no irrelevancy or redundancy of allegation. As to the former, there is pertinency of claim, and as to the latter, the meagerness and, perhaps, the insufficiency of the averments, show a decidedly contrary condition.

Order affirmed, with $10 costs.

Freedman, J., concurred.  