
    Morris Kusselewskey, Respondent, v. Samuel Fabricant, Appellant.
    (Essex County Court—
    April, 1894.)
    A justice of the peace has no authority to enter judgment upon a verified complaint, without proof of the cause of action, in an action for fraud and deceit.
    The verified complaint in an action in Justice’s Court alleged that defendant made certain representations as to his solvency with intent to deceive and defraud the plaintiff and to induce him to sell the defendant goods on credit; that plaintiff, relying thereon, sold him goods to the amount of $180; that said representations were false and fraudulent and known to defendant to be so ; that no part of the purchase price had been paid except $100, and none of the goods returned, to plaintiff's damage $80, and demanded judgment for $80. Held, that the cause of action set forth in the complaint was one for fraud and deceit, and that the justice could'not enter judgment thereon without proof.
    Appeal by defendant from judgment rendered in favor of plaintiff in Justice’s Court. The action was commenced by the service of a copy.of the summons and verified complaint on the defendant personally. The complaint is as follows :
    “ Plaintiff for a cause of action against the defendant respectfully shows to this court and alleges : That on the 6th day of November, 1893, at the village of Keeseville, New York, the defendant, with intent to deceive and defraud the plaintiff, induced plaintiff to sell him, the said defendant, goods and merchandise, to wit, dry goods and men’s clothing, falsely, fraudulently and unlawfully represented to plaintiff that he, said defendant, was solvent and worth in cash on hand $200; and in dry and dress goods the sum of $600, and debts standing out about $200, and a horse and wagon over and above all his liabilities.
    “ That plaintiff, relying on said representations so6made by defendant and believing the same to be true, was thereby induced to and did sell to the defendant certain goods, wares and merchandise, namely, dry goods, dress goods and men’s clothing, at the time and place above mentioned, at the agreed price and value of $180.
    
      “ That said representations so made by defendant were false, fraudulent, untrue and unlawful in each and every particular, and were then known to defendant to be false, untrue and unlawful.
    
      “ That no part of the same has been paid except the sum of $100, and none of said goods have been returned to plaintiff, and to plaintiff’s damage $80.
    “ Wherefore, plaintiff demands judgment against defendant for $80 besides the costs of this action.”
    Upon the return of the summons the justice rendered a judgment in favor of the plaintiff against the defendant. The judgment was rendered solely upon the verified complaint, no proof being offered by the plaintiff in support of any of the allegations of the complaint. Erom this judgment the defendant has appealed.
    
      A. W. Boynton, for appellant.
    
      E. T. Stokes, for respondent.
   McLaughlin, J.

I think this judgment should be reversed, because the cause of action set out in the complaint is clearly one to recover damages for fraud or deceit. It was so understood by the justice who rendered the judgment; otherwise, he would not have rendered a judgment against the person of the defendant. Section 2891 of the Code of Civil Procedure provides that “ If the defendant fails to appear and answer, the plaintiff cannot recover without proving his case.” The "defendant did not appear and no proof whatever was offered. The respondent’s counsel conceded upon the argument that this would call for a reversal of the judgment, except for the fact that no proof - was required, inasmuch as a verified complaint was served, and that the plaintiff was entitled to a judgment without any proof by virtue of chapter 414 of the Laws of 1881. This statute provides, that in any action arising on contract for the recovery of money only or on an account the plaintiff may serve upon the defendant with the summons a copy of the complaint verified as in the Supreme-Court, and unless the defendant files a verified answer- the justice must render a judgment in favor of the plaintiff for the amount claimed in the complaint, with costs, without putting the plaintiff to any proof. This action is obviously one-that does not fall within the provisions of the statute referred to. It is not an action to recover a judgment “ on a contract for the recovery of money only or on an account.” Plaintiff" claims to have suffered damage by reason of the fraud practiced upon him by the defendant, and he could not obtain the-judgment without proving the fraud. The justice, therefore^. was1 not authorized to render the judgment which he did without proof to establish the allegation of fraud, and he having-rendered a judgment merely upon the verified complaint, it. follows that the judgment must be reversed. Vorzimer v. Shapiro, 6 Misc. Rep. 143.

Judgment reversed, with costs.  