
    LUSTENBERGER v. LUSTENBERGER et al.
    (Supreme Court, Appellate Term.
    February 8, 1912.)
    Judgment (§ 249)—Pleading—Variance.
    Where a complaint alleges a cause of action for the recovery of money obtained by fraud, and is supported by a bill of particulars stating in technical language a cause of action for money obtained by false representations, on failure of plaintiff to prove the fraud, defendant is entitled to judgment, although the evidence shows that the plaintiff would have been entitled to recover, if he had sued on contract of lending.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 435; Dee. Dig. § 249.*]
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Elise Lustenberger against Peter Lustenberger and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Argued January term, 1912, before SEABURY, GERARD, and HOTCHKISS, JJ.
    
      August P. Wagener, for appellant.
    John J. Weiss, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The complaint in this action" was oral, to recover money obtained from the plaintiff by fraud. It is conceded by both parties that the plaintiff lent to the defendants the sum of $300, and that only $23 has been repaid. The sole question in dispute on the trial was whether, to induce the loan, the defendants represented to the plaintiff that the defendant Ida Rustenberger would inherit, or merely that she hoped to inherit, the sum of $1,000 from her grandfather; .

We see no reason for disturbing the finding of the trial cqurt that there was no fraud on defendants’ part. The defendants undoubtedly owe the plaintiff the sum of $277, which may be recovered in a proper action. But here the complaint was in tort, and was supported by a bill of particulars, stating carefully and in technical words a cause of action for moneys obtained by false pretenses and material representations. No amendment was asked at the trial, if in fact it was within the power of the trial court to grant an amendment which would wholly change the form of the action. If parties clearly and unmistakably elect to sue in tort, where the facts do not justify such a form of action, we cannot relieve them from the results of their mistake, though it appears that they might have recovered, had they sued on contract.

The judgment must be affirmed, with costs.  