
    John Kress, Appellant, v. Christian Woehrle, Respondent.
    (Supreme Court, Appellate Term,
    May, 1898.)
    Pleading where a complaint charges fraud, there can be no recovery on contract — Proof of fraud.
    Where the complaint, in an action to recover moneys, alleges them to have been obtained from the plaintiff by the defendant through fraudulent representations, it is the duty of the court, upon, finding that no fraud has been committed, to dismiss ,the complaint; and it has' no power to render :a judgment in favor ¡of the plaintiff for the amount claimed as “ for moneys loaned.”
    An allegation of fraud in contracting a liability is not sustained by mere proof of a contract and its breach.
    Appeal by the plaintiff from a judgment of the Municipal Court, borough of Manhattan, • seventh district, rendered in his favor “ for moneys loaned. Ho fraud shown,” against the defendant, hy the acting justice thereof, without a jury.
    The nature of the action and the material facts are stated in the , . / opinion.
    M. S. Adler, for appellant.
    Julius Henry Cohen, for respondent.
   Giegerich, J.

The plaintiff sued for the recovery of moneys alleged to have been obtained from him by the defendant by fraudulent-representations. The justice decided that no .fraud was shown and gave judgment in favor of plaintiff for the amount claimed “for moneys loaned.” This was error. H the justice did not believe, as is obvious, that a fraud had been committed, it was his duty to dismiss the complaint, or, upon a conflict) of the evidence, to render a judgment in favor of the defendant, and not give judgment for the plaintiff for the sum obtained ex contractu.

The form of the plaintiff’s action being ex delieio, it was incumbent upon him to establish the fact that the defendant was guilty of fraud in contracting or incurring the liability, and his allegations were not sustained by the mere proof’ of a contract and its breach. Walter v. Bennett, 16 N. Y. 250; Ross v. Mather, 51 id. 108; Truesdell v. Bourke, 145 id. 612; Kley v. Healy, 9 Misc. Rep. 93; Smith v. Smith, 4 App. Div. 227; Starr v. Silverman, 23 Misc. Rep. 151; 50 N. Y. Supp. 657; Wright v. Duffie, 23 Misc. Rep. 338 and citations.

The judgment cannot stand in any event, because it is not secundwn allegata et probata. Fuld v. Kahn, 4 Misc. Rep. 600; Owens v. Flynn, 7 id. 171; Kley v. Healy, supra.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the, event.

Beekman, P. J., and Gtldebsleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  