
    Edward J. Wessels, Pl’ff, v. Alfred Carr, Def't.
    
      (Supreme Court, New York Special Term,
    
    
      Filed March, 1896.)
    
    1. Pleading—Demurrer.
    In determining the sufficiency of the pleading demurred to, it must be assumed that the facts stated therein, as well as such as may by fair and reasonable intendment be implied from the allegations made, are true.
    8. Same.
    Where the complaint shows title to any redress in any form, it is good against a demurrer.
    3. Fraud—Election oe remedy,
    On discovery of fraud, the plaintiff has an alternative of remedies, either to rescind.the contract, or, affirming it, sue for damages. '
    Demurrer to complaint.
    Franklin Bien, pl’ff; T. G. Sheehan, for def't.
   PRYOR, J.

Insufficiency in substance is the ground of demurrer to a complaint which exhibits the following facts : That plaintiff recovered a judgment against the defendant for $1,237.49, which is still unpaid and unsatisfied ; that, on plaintiff endeavoring to collect said judgment, the defendant willfully, intentionally, and falsely represented that he was a poor man, and could not pay a dollar of his debts, but that, if plaintiff would accept $250 in full settlement of said judgment, he, the defendant, would procure a party to take an assignment of the said judgment for the said sum; that relying upon the statement of the defendant in regard to his financial ability to pay the said judgment, the plaintiff accepted the defendant’s offer, gave the defendant a release, and made an assignment of the said judgment to one William H. Mangels; that the $250 was paid, not by Mangels, but by the defendant; that the assignment to Mangels was intended to deceive plaintiff into believing that the defendant was a poor man, and unable to pay the judgment, and that, in effect, the assignment was for the benefit of the defendant; that the representation of defendant in regard to his inability to pay said judgment was false, and made with the intention of deceiving and defrauding the plaintiff; that in fact the defendant was a man of means and able to pay the said judgment in ful'1; and that by reason of the premises the plaintiff has suffered damages in the sum of $1,500. Obviously, here are all the constituents of an action for deceit, namely, “representation, falsity, scienter, deception, and injury.” Church, C. J., in Arthur v. Griswold, 55 N. Y. 400, 410 ; Brackett v. Griswold, 112 id. 454 ; 21 St. Rep. 791; Hickey v. Morrell, 102 N. Y. 454, 463. In determining the sufficiency of the pleading demurred to, it must be assumed that the facts stated therein, as' well as such as may by fair and reasonable intendment be implied from the allegations made, are true.” Milliken v. Telegraph Co., 110 N. Y. 403 ; 18 St. Rep. 328. “ To sustain a demurrer to a complaint it is not sufficient that the facts are imperfectly or informally averred, or that it lacks definiteness and precision, or that the material facts are augmentatively averred ; it will be deemed to allege what can by reasonable and fair intendment be implied from the allegations.” Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 id. 193 ; 37 St. Rep. 1. While the court may not, by implication, import an absent allegation into a complaint (Clark v. Dillon, 97 N. Y. 370), still “ pleadings are to liberally construed with a view to substantial! justice, or, in other words, with a view to get out the real truth' of the case, when it will not involve surprise or injustice to either! party” (PECKHAM, J., in Bowe v. Wilkins, 105 N. Y. 322, 328 ; 7 St. Rep. 539. But why recourse to rules of construction/ when the complaint is explicit in the statement of every fact es-‘ sential to the support" of the action ? Indeed,- the demuz-rant does not challenge the right of plaintiff on the facts pleaded to some relief, but the contention is that his only remedy is an action for cancellation of the assignment and release of the judgment. But,; if the complaint show title to any redress in any form, it is good' against the demurrer. Johnson v. Girdwood, 7 Misc. Rep. 651; 58 St. Rep. 338, affirmed by court of appeals, 143 N. Y. 660; 63. St. Rep. 866. On discovery of the fraud, plaintiff had an alternative of remedies ; that is, either to rescind the contract, or af* fii’ming it, sue for damages. Krumm v. Beach, 96 N. Y. 398, 406; Vail v. Reynolds, 118 id. 297, 302; 28 St. Rep. 707; Cooley, Torts, 503. He adopts the latter expedient, to the pursuit o£ which, manifestly, the assignment and. release of the judgment, instead of opposing an obstacle, are indespensible conditions. Such assignment and release, fraudulently procured, is the gravamen of the action.

Demurrer overruled, with leave to answer.'  