
    FASS, Appellant, v. SCHAFFER, Respondent.
    (Supreme Court, Appellate Term.
    December, 1901.)
    Action by John Fass, Jr., against Henry R. Schaffer.
    Charles Maitland Beattie, for appellant.
    House, Grossman . & Vorhaus, for respondent.
   SCOTT, J.

The plaintiff wholly failed to sustain the cause of action stated in his complaint. His allegations were that he was induced to give defendant $400 to bet on horse races upon the false representation by defendant that he had secret information about the abilities of the horses on which money was to be wagered and their competitors, as well as of such practices as would insure the horses he bet on to win; that said moneys were procured from plaintiff by deceit; that he did not intend to bet the money at all, and did not in fact do so, but converted the same to his own use. The complaint then details at length a fraudulent scheme which it is alleged the defendant undertook and carried through to cheat plaintiff out of his money. Of all this there is not one word of evidence, except to the effect that plaintiff gave defendant $400 to bet. The evidence of defendant tends to show that he did actually bet the money thus intrusted to him, although he professes to be quite unable to give any particulars relating to such bets. At all events, he says that he lost the money. Having failed to establish the cause of action upon which he relied, the plaintiff’s complaint should have been dismissed. The justice, however, could go no further than this, and exceeded his power when he directed a verdict for defendant. Merkin v. Gersh, 30 Misc. Rep. 758, 63 N. Y. Supp. 75. The judgment must be so modified as to direct that the action be dismissed, with costs, without prejudice to a new action, and without costs to either party in this court. All concur.  