
    OSCAR L. RICHARDS, et al., Appellants, v. DAVID FOX, et al., Respondents.
    
      False representations—Time material.— Conforming pleading to proofs motion for, when not granted.
    
    The cause was tried, and turned in the court below, upon questions as to the points of time when defendants received from plaintiffs the sum of money sued for, which plaintiffs alleged defendants had obtained from them on the false representations that a similar one was due them from the United States government as and for a drawback, and that they would pay to plaintiffs the amount of the drawback when the same should be paid to them by the United States,—and also upon 'the question as to when defendants received the drawback from the United States. The evidence showed that defendants made the representations and received the money, from plaintiffs, and also received the drawback on the same day; but failed to show which was received first. Held, that the complaint was properly dismissed.
    A motion to conform pleadings to proof will not be granted when its effect * will be to so amend the complaint that it would appear that there was no cause of action.
    Before Sedgwick, Oh.. J., O’Gorman and Ingraham, JJ„-
    
      Decided April 6, 1885.
    Appeal by plaintiff, from judgment dismissing the complaint entered upon a direction of a judge at a trial term, with a jury.
    
      Kaufmann & Sanders, attorneys, and Lewis Sanders, of counsel for appellants, made the point on the question of time:
    That the plaintiffs had proved that their office was kept open until six o’clock, except on Saturdays, when it closes between four and five; that they did á general banking business, did not stop drawing checks until they closed, and that the check given the defendants was the last check drawn on July 14, 1883, thus raising a presumption that their check was given after three o’clock, at which hour the sub-treasury closes. They further argued that, independent of this question of time, the plaintiff was entitled to recover; and referring to the facts shown by the evidence that on July 14, 1883, the defendant, David Fox, had a debenture in his possession, which he had received on, and which was payable on July 6, provided the duties arising on the importation in respect whereof the debenture was given were paid, and that the duties were paid June 9, 1883, and also to the other evidence, argued, that there was an intent to defraud, or the defendant David Fox would have surrendered the debenture to the plaintiffs when he received their check for the duties, if he had not then cashed it.
    Fraud and damage combined gave a good cause of action. The action is for fraud and deceit, not false representations. When the defendants made the representations, upon which they obtained the plaintiff’s check, they had in their possession the means of defrauding the latter, and they put that means into effectual operation on the same day, whether it was by converting the debenture certificate, or by the money previously refunded. It is entirely clear that plaintiffs never would have advanced the money had defendants disclosed the fact of their possession of the debenture certificate or check, requiring present payment or refund of the duties. It is equally as clear that, without intent to defraud, defendants never would have asked plaintiffs for their check. A. “He stated that he wanted the money from us, stating that he did not know how long it might be before he could recover the money from the government, and, therefore, he insisted upon our paying the money fii-st.” The fraud consists in the conversion of plaintiffs’ check, obtained by deceit. The facts proved are within the allegation of the complaint, and no amendment was necessary. The evidence was admitted without objection, and no amendment was necessary (Tyng v. Commercial Warehouse Co., 58 N. Y. 313; ch. 431, Laws 1876; § 723, Code; Reeder v. Sayre, 70 N. Y. 190).
    If any amendment was necessary, the court should have granted it, as the defendants could not have been taken by surprise by proof of their own acts. Surprise was not suggested nor possible.
    
      Richard S. Newcomb, attorney, and Albert Cardozo, of counsel for respondents, argued:
    I. There was proof that the defendants received the money from both the government and the plaintiffs on the same day, but there was a total absence of any evidence as to which payment was prior in point of time. As the plaintiffs held the burden of proof to show that Mr. Fox’s statement was false, it was incumbent on them to show that at the time the money was received by the defendants from the plaintiffs, the defendant had also received the amount from the government. This they utterly failed to do, and in favor of innocence, which the law always presumes, the inference would be that the money was received from the plaintiff first.
    II. To make any case against the defendants, the hour when the payments were made was necessary to be proved by the plaintiffs. In such cases fractions of a day will be considered (Haden v. Buddensick, 39 How. Pr. 246). .
    III. It was not error for the court to refuse the motion to conform the complaint to the proof. (1.) There was no proof of fraud, and therefore nothing to conform the complaint to the proof. (2.) When a plaintiff brings the' action in such form as to entitle him to an order of arrest and an execution against the body of the defendants, he should see to it that he has proof which will entitle him to recover in that form. The statute {Code, § 549, sub. 4), expressly provides that when the action is brought for the alleged fraud the plaintiff cannot recover unless he proves the fraud.
   By the Court.—Sedgwick, Ch. J.

The complaint alleged that the defendants, “with intent to deceive and defraud the plaintiffs by inducing them to furnish defendant’s firm with the sum of $424.10, represented to plaintiffs that the firm of Charles Fox Sons & Co., had paid the sum of $424.10 to the United States government, in payment of certain duties, &c. ; that defendants were entitled to receive back said sum from the United States, less one per centum of the amount thereof ; that the defendants had made a proper claim for the refund of said sum, but that the whole amount thereof was still due them and unpaid,-and that if plaintiffs would reimburse defendants the aforesaid amount of duties expended by them, they, defendants, would return and pay to plaintiffs the amount which would be refunded to defendants, whenever the same should be paid back to them that relying upon the truth of such representations, the plaintiffs paid the money as requested ; “that at the time, the defendants, <&c., knew such representations to be false, and knew that no sum whatever was then due or owing to defendants from the United States government, on any claim made by defendants for refund of duties paid on the entry aforesaid, and knew that the amount of refund on the claim made by defendants had been paid to defendants by the United States prior to the time of said representations.

On the trial, the case turned upon an issue, made by an allegation of the answer, that at the time of the representation, the defendants had not received from the United States the amount of the drawback or any part of it.

The plaintiffs proved by a clerk of the customs, that the defendants received a check for the drawback on July 14, which was the day on which the representations were made, but he could not tell on what hour of the day . the defendants received the check. The check was paid in the sub-treasury. He said he thought the sub-treasury closed at three o’clock in the afternoon. A witness for plaintiffs, who delivered the money to defendants upon their representation, testified that he had no positive remembrance of the time in the day that the affair happened, but he believed it was about the middle of the day. After leaving the stand, he was again called as a witness, and produced the check-book of plaintiffs and testified that from that book it appeared that the check drawn to defendants was the last one in the book of that day, that the office closes at six o’clock, we do not stop drawing checks until we close ; we do a general banking business that he had no definite remembrance of the time, except what he then had from examining the check-book, and that then he could not tell at what hour that check was drawn.

The judge below was right in dismissing the complaint, on the ground that the plaintiffs had not proved that the defendants had received from the United States the amount of the drawback, at the time of the representation. It was not proved that the drawback had been paid before the' middle of the day, when the witness for plaintiffs thought the matter occurred. There were no circumstances in the case which would have justified a jury in inferring that the check was in fact drawn near six o’clock on a particular day, because the firm generally kept drawing checks to.the close of business, and'kept the office open until 6 o’clock. This matter was safely tested by the witness saying that, after all, he could not tell at what hour the check was drawn. The motion to conform the pleadings to the proof could not have been granted, for it was substantially a motion that the complaint be so amended that it would appear that there was no cause of action. It did not incontrovertibly appear that at the time of the representations, the defendants intended not to repay the plaintiffs.

Judgment affirmed, with costs.

O’Gorman and Ingraham, JJ., concurred.  