
    Edward J. Bosworth, Resp’t, v. Edward F. Higgins, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Pleading — Contract—Allegation of fraud.
    The complaint alleged that defendant offered to sell plaintiff a horse and warranted and fraudulently represented it to be sound ; that plaintiff purchased relying on the warranty and representations; that at the time of the sale and warranty the horse was unsound. Held, that the gravamen of the action was breach of contract and the use of the word, “fraudulently,” did not turn the complaint into one for fraud.
    
      (Boss v. Mather, 51 N. Y., 108, distinguished.)
    8. Same — Amendment.
    The referee allowed an amendment striking out the word “ fraudulently.” Held, no error; that this did not prejudice defendant, as the word was irrelevant and did not present an issuable fact.
    Appeal from a judgment entered in the county court of Monroe county upon the report of a referee.
    
      W. H. Whiting, for resp’t; McNaughton & Taylor, for app’lt.
   Macomber, J.

This action was originally begun in the" municipal court of the city of Bochester. The complaint was filed for the recovery of damages in the exchange of horses between the parties. The answer which was interposed set up 'a general denial and also a counterclaim for damages for breach of warranty of a gray horse which was turned out by the plaintiff to the defendant in the trade. At the trial in that court the defendant did not appear and judgment was taken against him. His appeal to the county court from the judgment entered in the municipal court was for the purpose of obtaining a new trial. The case was referred by consent and such reference resulted substantially in the same judgment which was pronounced by the municipal court.

"Various exceptions have been presented for our consideration touching the reception and rejection of evidence, but in none of them do we find any error committed which, in any manner, prejudiced the defendant’s rights.

The principal matter urged upon our attention is the proposition that the action was not after all for a breach of warranty of the horse, but rather for damages resulting from false and fraudulent representations, and that consequently the plaintiff could not recover upon contract. The case mainly relied upon by the counsel for the appellant is that of Ross v. Mather, 51 N. Y., 108, where the commission of appeals holds substantially that if the complaint contains suitable allegations for a recovery for fraud and deceit, and also for a breach of warranty, recovery cannot be had upon the breach of warranty. This case, however, is opposed in principle to the decision of the court of appeals in Conaughty v. Nichols, 42 N. Y., 83, as well as to cases subsequently decided by the court of appeals, to which reference will shortly be made. In the case of Ross v. Mather, supra, the complaint was clearly and undoubtedly designed to charge the defendant in damages for false and fraudulent representations. It contained every element necessary to a recovery in such an action. The elements entering into a case for recovery upon that ground are, as stated in Arthur v. Griswold, 55 N. Y., 400, representations, falsity, scienter, deception and injury. In the case before us, however, it is plain that the pleader intended to charge the defendant only in an action om contract for the recovery of damages for a breach of warranty. The language of the complaint is that on the 18th day of May, 1888, the defendant offered to sell to the plaintiff a certain horse and warranted and fraudulently represented said horse to be in all respects perfectly sound, that the plaintiff relying upon said warranty and representations then and there purchased said horse and paid to the defendant therefor another horse of the value of $125, and $90 in money; that at the time of said warranty and sale the said horse was unsound, had a spavin on one hind leg, and another spavin coming on the other hind leg, and was worth $250 less than the defendant represented and warranted, and' was known by the defendant so to be, and that said horse still so' remains.”

Leaving out the word “ fraudulently,” in the first sentence quoted-from the complaint, there would be no room for discussion of this question, for then the”case would stand precisely as a simple one for recovery upon a contract. In our judgment the use of that,; word in. that connection, followed, as it is by other allegations which hook solely to a complaint for breach of warranty, does not turn the (complaint into one for fraud. The gravamen of the action was breach of contract, and, in such a case, the allegations of fraud in the complaint inducing the entering into of the contract on the part of the plaintiff do not affect the nature of the action or the remedy therein. The word “fraudulently,” in this instance, was wholly irrelevant, and the allegation of fraud was not an issuable one and could not have been tried if the plaintiff had desired it -to be under these allegations. Graves v. Waite, 59 N. Y., 156; 100 id., 196; Brackett v. Griswold, 112 id., 454; 21 N. Y. State Rep., 791.

Moreover, the defendant, at the trial before the referee, pro-needed upon the same assumption that the plaintiff did, that the notion was for a breach of warranty only, for at the close of the plaintiff's case a motion was made for a nonsuit upon the grounds: First. That the plaintiff had failed to prove a warranty of. this horse. There was no suggestion that the action was not upon and brought to recover for a breach of warranty, nor was it claimed that the correct reading of the compla'nt showed it to be for a tort. The question was not raised until after the close of the evidence on both sides when, for the first time, the point was made. Thereupon the referee, to make the case entirely clear, permitted, properly enough, although quite unnecessarily, an amendment by which, if he understood it, the word “fraudulently”, was eliminated from the complaint. No qne was prejudiced by this amendment. It did not bring into the case a new cause of action; it did not strike out of it any cause of action which counsel, until the last moment, had supposed existed. Price v. Brown, 98 N. Y., 393.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concur.  