
    Charles L. Booth, Appellant, v. Charles Englert, Respondent.
    
      Complaint alleging fraud based upon false representations and a breach of warranty —the former allegations may be disregarded as surplusage—on a motion to vacate ah execution against the person the theory on which the action was tried may be shown.
    
    Upon a motion by the defendant in an action to vacate an execution issued against his person, on the ground that the action was not one in which such an execution could be properly issued, it is competent for him to show the theory upon which the action was tried and decided.
    Where the complaint in an action contains allegations appropriate only to an action for fraud and deceit, together with allegations sufficient to constitute a cause of action for a breach of warranty on a sale of personal property, if the plaintiff, upon the trial, establishes the cause of action on contract, but fails to establish the cause of action based upon the allegations relating to fraud and ' deceit, the last-mentioned allegations may be disregarded as surplusage and a recovery on contract be sustained.
    Parker, P. J., dissented.
    Appeal by the plaintiff, Charles L. Booth, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 18th day of July, 1904, vacating an execution theretofore issued in the action against the person of the defendant.
    The complaint alleges that the plaintiff purchased of the defendant a gray mare, for the agreed price of $100, $90 of which was' paid by the plaintiff to the defendant at the time of the purchase. The complaint then contains the following allegations :
    “ That at the time of said sale and purchase and immediately prior thereto, the defendant stated to this plaintiff that said gray mare was ‘sound, kind, true and all right in every way, weighed twelve hundred and sixty pounds and was only 12 years old.’
    “That relying upon the statements and representations of the said defendant above mentioned, the plaintiff purchased said horse for the consideration herein mentioned, paying therefor, the sum of Ninety Dollars above referred to.
    “ That said horse was not ‘ sound, kind and all right in every respect,’ but was in fact unsound, not kind nor true nor all right in many respects, and the statements of the said defendant concerning said horse, upon which the plaintiff relied in making the purchase, were wholly, wilfully false and untrue, and were known to be false and untrue by said defendant at the time they were made.”
    It is further alleged that by reason of the facts set forth the plaintiff has sustained damages in the sum of $150, for which amount, with interest and costs, judgment is demanded. The allegations above quoted from the complaint were denied by the defendant. Upon the trial the plaintiff recovered a verdict for $50. Judgment was entered thereupon and an execution against the property of the defendant issued and returned unsatisfied. An execution was then issued against the person of the defendant. A motion was thereupon made to set aside the last-mentioned execution on the ground that the action had been tried as one for breach of warranty and that upon the pleadings and questions submitted to the jury upon the trial no questions of fraud or deceit were raised. From the order of the court granting such motion this appeal is taken.
    
      Eugene D. Scribner, for the appellant.
    
      H. D. Wright, for the respondent.
   Chester, J.:

The theory of the plaintiff is that the action is for fraud and. deceit, in making false representations upon the sale of the mare, and of the defendant, that the complaint sets forth a cause of action for breach of warranty upon such sale.

It is true that the allegations in the complaint, that “ the statements of the said defendant concerning said horse, upon which the plaintiff relied in making the purchase, were wholly, wilfully false and untrue, and were known to be false and untrue by said defendant at the time they were made,” were appropriate only to an action for fraud and deceit, yet these allegations may be eliminated from the complaint and sufficient remain for a good complaint in an action upon contract, namely, for breach of a warranty in the sale of the mare. The action cannot be regarded as one solely founded upon a tort. Indeed, it appears to have been tried as one for breach of warranty, and no question: of fraud was submitted to the jury and it was competent upon a motion like this for the defendant to show the theory upon which the action wag tried and decided. (Neftel v. Lightstone, 77 N. Y. 96.)

If the action had been founded upon a tort solely the plaintiff could not have succeeded upon the trial, for he failed to show that the defendant knew, or had reason to know, that the statements and representations made by him concerning the mare were false, or that he assumed or intended to convey the impression that he had actual knowledge of their truth although conscious that he had no such knowledge. So that if the case had been tried as one for tort the complaint should have been dismissed for failure of proof. (Code Civ. Proc. § 549, subd. 4; Meyer v. Amidon, 45 N. Y. 169; Wakeman v. Dalley, 51 id. 27; Indianapolis, P. & C. R. R. Co. v. Tyng, 2 Hun, 311; affd., 63 N. Y. 653.)

Where, as here, a complaint contains a statement of facts constituting a cause of action upon a contract, which is sustained by proof, a recovery is nevertheless authorized under the authorities although the complaint also contains allegations of a tort. In such a case the latter are regarded as surplusage. (Fowler v. Abrams, 3 E. D. Smith, 1; Town of Green Island v. Williams, 79 App. Div. 260 ; Dodge v. Eckert, 71 Hun, 257; Cohn v. Beckhardt, 63 id. 333; 44 N. Y. St. Repr. 544; Conaughty v. Nichols, 42 N. Y. 83.)

The execution against the person was, therefore, improperly issued, and the order setting it aside should be affirmed, with ten dollars costs and disbursements.

All concurred, except Parker, P. J., dissenting.

Order affirmed, with ten dollars costs and disbursements.  