
    Louis Shafarman, Appellant, v. Max Jacobs, Impleaded, Respondent.
    (New York Superior Court — General Term,
    December, 1895.)
    1. Variance.
    Where the complaint in an action to recover goods which had been levied upon by a sheriff under execution alleges that the goods were wrongfully taken from plaintiff’s, possession by the judgment debtor, while the evidence shows that they were obtained from him by false and fraudulent representations, there is a fatal variance.
    2. Pleading— .Amendment. . •
    A complaint cannot he amended on the trial by changing the cause . of action from one to recover a. chattel, to,pne for its conversion.
    Appeal from an order of the Trial Term dismissing the complaint, with costs, and directing judgment in.favor-of defendant, Max Jacobs, for return of chattels, and from the judgment entered thereon.
    
      Jacob Manheim, for plaintiff.
    
      Max Altmayer, for defendants.
   Gildersleeve, J.

This action was brought to recover certain chattels, and the appeal is from an order entered at Trial Term dismissing the complaint, with costs, and directing the return of certain chattels to the defendant Max Jacobs, and from the judgment entered thereon. It is alleged in the complaint "that “ before and at the time of the commencement, of tliis action the plaintiff was, and>still is, the owner entitled to immediate possession of the following goods and chattels: 48_ág. dozen derby hats of the value of $659.50.” It further alleges that “the defendant Max Jacobs,-at various times between the 18tli day of July, 1890, and the' 19th day of September, 1890, did wrongfully take the said chattels from the possession of the plaintiff.” Then follows the affirmation that on or about the 12tli day of" October, >1890, the chattels in-question “ were levied upon by the defendant Daniel E. Sickles, as sheriff of the city and county of Eexy York, pursuant' to two cei’tain writs of ' execution. against the property of the defendant -Max Jacobs. The answer of -respondent, Max Jacobs," admits the levy upon the goods under "execution, issued against him prior to the commencement of the action., and admits the value of the chattels alleged .in the complaint, It denies plaintiff’s ownership or right- of possession at the time stated in the complaint, and alleges that the goods were properly and rightfully in respondent’s possession, as he _ had purchased the same from plaintiff in the ordinary and regular course of business on credit." The record • shows that the plaintiff testified that he voluntarily delivered the chattels in-question to the said defendant Jac.obs. His further testimony tends to show that he was induced to make the sale and delivery through certain representations as to Jacobs’ solvency; and financial standing. ' . - -

Section 1690 of the Code, subdivision 3, provides that no action to recover a chattel can be maintained where it was seized by virtue of ’ an execution or a warrant of attachment, against the property of a person other than the plaintiff, and at .the time of the seizure' the plaintiff • had not the right to reduce it into his possession.”

In Wise v. Grant, Sheriff, 140 N. Y. 593, the- Court of Appeals said, Where a sale and delivery of goods is procured by -fraudulent representations on the part of the. purchaser, the title and possession pass to him, notwithstanding the fraud, subject to the right of the vendor to-rescind the contract. of sale.” If the complaint states facts sufficient to constitute a cause of action, it is an action, for vwrohgful taking’ .while the evidence Clearly shows that, "upon, the facts disclosed, the only action maintainable is for obtaining the plaintiff’s goods by means of false- and "fraudulent: representations.

This variance is fatal to "plaintiff’s complaint,- and the complaint for this reason was properly dismissed.

The motion to-amend could not be granted for the reason that it called for an entire change of the cause of action.. The motion was" to chang'e the cause of action from one to-recover a chattel to .a cause of action for the, con-version, thereof.

The record, discloses nq error. The, order and judgment appealed from should be affirmed, with costs to the respondent.

McAdam, J., concurs.

Order and judgment .affirmed, with costs.  