
    Edward S. Steinam, App’lt, v. George H. Bell, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February, 1894.)
    
    1. Pleadings—Answer.
    An allegation in an answer “that the defendant has not sufficient knowledge to form a belief ” as to the averments contained in certain portions of the complaint, is not authorized in district courts.
    3. Appeal—Dismissal of complaint.
    Where, in an action for fraud, the elements of representation, falsity, deception and injury are abundantly established by the evidence, and scienter confessed by non-denial, a judgment of dismissal is erroneous.
    Appeal by the plaintiff from a judgment or dismissal of the district court in the city of New York for the second judicial district, rendered on a trial had before the justice thereof, without a jury.
    The nature of the action and the material facts are stated in the opinion.
    
      M. A. Lesser, for app’lt; J. Stewart Boss, for resp’t.
   Giegerich, J.

The plaintiff in his verified complaint alleged: I. That the defendant, offering to sell the plaintiff a certain mare, warranted and falsely and wrongfully represented said mare to be sound, free from fault and correct in every respect. II. That the plaintiff, relying upon such warranty and representations, and induced thereby, then and there purchased said mare and paid the defendant therefor the sum of $250. III. “ That, at the time of said warranty and sale, the said mare was unsound, unkind and untrue, as well as restive and ungovernable in harness, and had an equine disease, and was, moreover, big with young at the time, and, therefore, by reason of the premises, practically worthless to the plaintiff and known by the defendant to be so.” IY. “That, in consequence of such condition of the animal, the plaintiff was put to great expense in the care and in attempting the cure of the said mare and in her treatment during pregnancy, and thereafter in the keeping of her and her colt, foaled on or about the 19th day of April last." Y. “ That, by reason of the premises, the plaintiff was injured and misled to his damage $250.”

The defendant, in his answer, also verified, after putting in issue the allegations of the first and second paragraphs of the complaint, denied the allegations in paragraph 3, down to and including the word “ harness,” and alleged “ that, as to the remainder of the allegations in said paragraph 3 contained, defendant has not sufficient information to form a beliefand “ that, as to the allegations in paragraphs 4 and 5, defendant has not sufficient information to form a belief.”

During the progress of the- trial, and before the plaintiff had rested, his counsel moved for judgment on the pleadings on the ground “ that the only issue raised by the answer is the question of warranty,” which motion was denied, and he excepted. The appellant insists that this is a reversible error. This leads to the consideration of the sufficiency of the answer.

A pleading in the district courts of this city may be oral or in writing. “ If it is oral, the substance thereof must be entered by the justice in his docket book; if it is written, it must be filed by him, and a reference to it made in his docket book.” Code of Civ. Pro., § 2938,. which is made applicable to these courts by § 1347 of the consolidation act, Laws 1882, chapter 410. A denial in an answer in these courts seems to be limited to one upon knowledge, Code of Civ. Pro., § 2938; consolidation act, §§ 1347 and 1383, subd. 1, to which should be added “a denial upon information and belief,” which seems to be. authorized by implication under § 526 of the Code of Civil Procedure, Wood v. Raydure, 39 Hun, 144; 9 Civ. Pro. 96 ; Bennett v. Leeds Mfg. Co., 110 N. Y., 150; 16 St. Rep. 841, which section, it appears, is made applicable to District Courts by §| 1346, 1383 of the Consolidation act.

An allegation in the answer “ that the defendant has not sufficient knowledge to form a belief ” as to the allegations contained in certain portions of the complaint is not authorized in District Courts, Dennison v. Carnahan, 1 E. D. Smith, 144. A denial “ of any knowledge or information thereof sufficient to form a belief,” permitted by section 500 of the Code of Civil Procedure, being expressly restricted to courts of record. Code of Civ. Pro. § 3347," subd. 4; see Dennison v. Carnahan, supra. It follows that the answer in the case at bar to portions of the third and the entire fourth and fifth paragraphs of the complaint that “ defendant has not sufficient information to form a belief,” is wholly insufficient and these allegations, if material, must be taken as confessed by non-denial. Are any of them material? In order to answer this question it will first be necessary to determine the nature of this action.

This case is almost identical with Ross v. Mather, 51 N. Y. 108, in which the Court of last resort held that the complaint contained all the elements of a cause of action for a fraud.

The essential constitutents of an action to recover damages for false and fraudulent representations are “ representation, falsity, scienter, deception and injury.” Arthur v. Griswold, 55 N. Y., 400, per Church, C. J.; Brackett v. Griswold, 112 N. Y., 454; 21 St. Rep. 791; Bosworth v. Higgins, 26 St. Rep., 474 ; 7 N. Y. Supp., 210. Tested by these rules, it is quite clear that the complaint in this case is for a fraud, not upon a contract. Such being the nature of the action, the averments in the third paragraph of the complaint as to the scienter of the defendant must be regarded as not being denied, and being material, are, therefore, admitted. Dennison v. Carnahan, supra.

The other allegations of the complaint, hereinbefore referred to, as to specific facts, as distinguished from a matter of opinion and other than a statement of unliquidated damages, must also be admitted by the defendant’s failure to deny them. Abbott’s Brief on Pleadings, § 540, subd. 3, p. 441, and cases cited. Accordingly, it must be held that the following allegations of the complaint were confessed by non-denial, viz: “ That the mare had an equine disease, and was, moreover, big with young at the time.” “ That the plaintiff was put, to great expense in the care and in attempting the cure of said mare, and in her treatment during pregnancy, and thereafter in the keeping of her and her colt.” The denials contained in the other portions of the answer were sufficient to put in issue the remaining allegations of the complaint; therefore, the motion for judgment on the pleadings was properly denied.

The allegations of the complaint as to representation, falsity, deception and injury were abundantly established by the evidence, and the scienter was confessed by non-denial, and was, therefore, not open to traverse or contrary proof on the trial. East River Electric Light Co. v. Clark, 45 St. Rep. 635; 18 N. Y. Supp., 464. The plaintiff, under any aspect of the cáse, was entitled to nominal damages. Moore v. N. Y. El. R.R. Co., 4 Misc. Rep., 132; 53 St. Rep. 169, and under all the circumstances of the case the - justice clearly erred in rendering judgment of dismissal, without prejudice to a new action. Cons, act, §1382.

It follows, from these views, that the judgment should be reversed and a new trial ordered, with costs to the party there prevailing.

In view of the statement contained in the appellant’s brief, that “the object of this appeal is to secure an authoritative utterance for the guidance of the court below,” it is deemed proper to remind the counsel for both parties litigant that the court below possesses ample power to allow a pleading to be amended at any time before or during the trial. Runge v. Esau, 6 Misc. Rep. 148; 56 St. Rep. 409,

Judgment reversed and a new trial ordered, with cost to the party there prevailing.

Bischoff, Jr., P. J., concurs.  