
    Orren E. Martin, Appellant, v. C. Cooper Clark, Respondent, Impleaded with the Adirondack Water Power and Paper Company.
    
      Deceit is actionable when damages an'e shown —■ conjecture, insufficient proof thereof.
    
    Any deceit which causes damage is actionable, but a-recovery cannot be had in an action based thereon, where the proof of damage rests merely in conjecture.
    Evidence that the holder of notes of an insolvent corporation has been induced to accept renewals thereof, by false representations as to its solvency made to him by its president at the time -when, to the knowledge of the latter, steps had been taken' to procure an attachment upon its property by another creditor, the subsequent levy of Which, made after the notes were renewed, but before the holder knew of the insolvency of the corporation, exhausted all its property, does not show that the holder of the notes would have realized the amount thereof had he refused to renew them, or establish his right to recover damages in an action brought therefor, because of the fraud and deceit of the president.
    
      Appeal by the plaintiff, Orren E. Martin,'from a judgment of the Supreme Court in favor of the defendant, C. Cooper Clark, entered in the office of the clerk of the county of St. Lawrence on thé 23d day of March, 1897, upon the dismissal of his complaint by direction of the court after a trial at the St. Lawrence Trial Term.
    The action was brought to recover damages caused by the fraud and deceit of the defendant in inducing the plaintiff to renew, certain notes of the Adirondack Water Power and Paper Company,. • an insolvent corporation, and thereby preventing the plaintiff from taking immediate steps for their collection.
    
      N. M. Claflin, for the appellant.
    
      Philo P. Safford, for the respondent.
   Landon, J.:

Deceit causing damage is actionable. ( Upton v. Vail, 6 Johns. 181; Hubbell v. Meigs, 50 N. Y. 480.) We assume for the purposes of our decision that the evidence tended to show deceit upon the part of the defendant, and that the plaintiff would have been entitled to go to the jury upon that question, provided there was also sufficient evidence to entitle him to go to the jury upon the question whether the deceit caused him damage. But we do not think the evidence tended to show, with sufficient certainty to justify its submission to the jury, that the plaintiff sustained any .damage. The plaintiff, in the fall of 1894, sold pulp to the Adirondack Water Power and Paper Company, a corporation, of which the defendant was the president, and took its notes therefor to the amount of $665, payable about March 1, 1895. The plaintiff indorsed the notes and transferred them to the State Bank of Nor-wood. When the notes were about to become due the corporation was hopelessly insolvent, a.faet well known to the defendant Clark and unknown to the plaintiff; nevertheless, the defendant, by representations and concealments which the jury might have found were made and practiced with the fraudulent intent to deceive the plaintiff, induced him to. accept a renewal of the notes by the corporation The renewal notes were payable forty-five to sixty days later. These renewal ñores the plaintiff indorsed and transferred them to the bank in place of the old ones. The defendant was also the president of the Fidelity Paper Company, another' corporation which was the creditor of the Adirondack Water Power and Paper Company for an amount greater than the latter company had means to pay. Both companies had offices in New York in the same building. Before the renewal notes were given, the Fidelity Company commenced an action against .the - Adirondack Company to recover the debt due from the latter, and the defendant had procured .an undertaking to be executed in that action for the of procuring an attachment against the property of the Adirondack Company. The attachment was issued and levied upon all the assets of the Adirondack Company after the renewal notes were made, and before plaintiff, knew of the insolvency of the latter company. Tinder the attachment all the property of the Adirondack Company was sold for ■ less than the ■ amount due the' Fidelity Company: -

The plaintiff’s, position is that,, but for the .renewal of the notes, he would have taken such proceedings upon their dishonor as would' have protected him against loss. This is conjectural and not certain. Evidence'of conjectures is not evidence that the con jectures and the facts are the same. It only amounts to proof that the plaintiff believes that he could and would have-realized as he now thinks" he might have done. Perhaps he would and perhaps not. It is not improbable, that if he had refused to renew the notes, the attachment would have been issued and served before the notes matured, and then he would have been obliged to attack the attachment. It is not difficult to see that if lie had treated the renewals as void because fraudulently procured, he would have had the same grounds for assailing the attachment as if he had not renewed the notes. In either case, how the. matter would have turned out we can only conjecture.. The plaintiff failed to prove any damage. And to this effect are the authorities in similar cases. ( Wemple v. Hildreth,10 Daly, 481; cited, with approval, N. Y. Land Imp. Co. v. Chapman, 118 N. Y. 288, and in Boome v. Jennings, 2 Misc. Rep. 257; Austin v. Barrows, 41 Conn. 287.; Lamb v. Stone, 11 Pick. 527; Bradley v. Fuller, 118 Mass. 239.; Dudley v. Briggs, 141 id. 582.)

We are cited to no cases to the contrary, the plaintiff assuming that, but for the fraudulent concealment of the fact of the attachment, the plaintiff would have proceeded at once to collect the notes. Even so, that is not proof that lie would have collected any part of them.

Judgment affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  