
    Frieda Kellenberger, Respondent, v. Frumed Meisner, Appellant, Impleaded with Others.
    
      False representations — remedy where an exchange of property is induced by false representations as to the value of property conveyed to the complaining party — an allegation of the answer in an action based thereon that the ilefendant had ceased to own the property conveyed to him is not demurrable.
    
    The complaint in an action alleged that the plaintiff and the defendant Foist had, by false representations made to them by the agent of the defendant Meisner, been induced to convey certain property in the city of New York to tbe defendant Meisner for the sum of §28,400 to be paid as follows : $20,500 by taking the premises subject to two mortgages thereon, §4,000. in cash and §3,900 by the conveyance by Meisner to the plaintiff aud the defendant Forst of certain real estate in New Jersey. The false representations alleged to have been made by Meisner’s agent related to the value of the New Jersey property. The relief demanded by the plaintiff was that the defendant Meisner pay in cash the amount which her agent represented the New Jersey property to be worth and that a lien for that amount be imposed upon the property conveyed to Meisner.
    
      Ed I, that the complaint was demurrable as to Meisner;
    That the plaintiff had a right, upon discovering the fraud, to rescind the contract, tender back what she had obtained thereunder and demand a reconveyance of her property, or else to sue those guilty of the fraud for the damages which she had sustained;
    That she could not, however, affirm the contract and retain the benefits which she had obtained thereunder, and compel Meisner to repurchase the New Jersey property at the price which her agent had represented such property to be worth;
    That an allegation in Meisner’s answer to the effect that she was no longer the owner of the property which the plaintiff and the defendant Forst had conveyed to her was not demurrable, for the reason that such allegation did not constitute a separate defense, but was matter in the nature of an answer to the presumption of Meisner’s continued ownership of the property which would arise from the allegation in the complaint that the property had been conveyed to her and was material in view of the plaintiff’s demand that the premises be impressed with a lien.
    Appeal by tbe defendant, Framed Meisner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 23d day of June, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the separate defense set forth in the said defendant’s answer.
    
      Henry L. Franklin, for the appellant.
    
      Jay C. Guggenheimer, for the respondent.
   Ingraham, J.:

The complaint alleges that the plaintiff and the defendant Fors-t were the owners of certain real property in the city of New York; that the defendant Lederer, as the agent of the defendant Meisner, made certain false and fraudulent representations to induce the plaintiff and the defendant Forst to convey the premises to the defendant Meisner; that relying upon said false and fraudulent representations the plaintiff and defendant Forst conveyed the premises in question to the defendant Meisner. The defendant Meisner answered by admitting the conveyance of the premises as described in the complaint, denying the other allegations of the complaint, and further answering alleges that she is not now the owner of the premises known as No. 225 West One Hundred and Forty-third street, in the city of New York. It is to this last allegation of fact that the plaintiff demurred as a separate defense, upon the ground that it does not contain facts sufficient to constitute a defense to the cause of action set forth in plaintiff’s complaint.”

The defendant to defeat the demurrer attacks the sufficiency of the complaint. The action is not to recover the damages sustained by the plaintiff and the defendant Forst for the fraud and deceit practiced upon them. Nor does the plaintiff in any express terms allege that the fraud and deceit alleged caused the plaintiff damage. She alleges that she and the defendant Forst were induced to convoy their property to the defendant Meisner for the sum of $28,400, to be paid for by her taking the premises subject to two mortgages for $20,500, $4,000 to be paid in cash, and $3,900 by the transfers and conveyance by the defendant Meisner to the plaintiff and the defendant Forst of three lots in the town of Woodbridge, in the State of New Jersey. She does not seek to rescind this transaction and to require the defendant Meisner to reconvey the property to her grantors, they offering to reconvey the New Jersey property in respect to which the false representations were made and to return the $4,000 in cash. What she wants to do is, to affirm the sale, to retain the cash that she got out of the transaction, to compel the defendant Meisner to pay in cash the amount that her agent represented the New Jersey property to be worth, and to impress a lien upon the property that she conveyed for that amount. I know of no principle by which this result can be accomplished. If the plaintiff was induced to make this conveyance by fraud, she had a right upon discovering- the fraud to rescind the contract, tender back what she had obtained, and demand a reconveyance of the property that she had conveyed, or she could sue those guilty of the fraud, for the damages that she sustained. But she could not affirm the contract and hold on to the advantage that she obtained, and compel the defendant Meisner to repurchase the property that was conveyed to the plaintiff and her associate at the price that the defendant’s agent had represented that it was worth.

I think, therefore, that the complaint does not state a good ca,use of action.

Nor do I think this allegation of fact which is demurred to as a separate defense is a separate defense to which a demurrer will lie. The plaintiff asks for certain equitable relief. As a basis for that relief the complaint alleged that certain property had been conveyed to the answering defendant; and from that allegation a presumption would arise that this answering defendant was still the owner of the property. The relief asked for is that the property that had been conveyed by' the plaintiff to the answering defendant should be impressed with a lien in favor of the plaintiff. A court of equity would not impress a piece of property with a lien in favor of the plaintiff if the owner of the property and the person in whom the title had vested was not a party to the action and before the court; and this allegation that the defendant is not now the owner of the property was in the nature of an answer to the presumption which would arise from the allegation that the property had been conveyed to the answering defendant.

I think, therefore, that for the reason that the complaint does not state a good cause of action and also for the reason that the clause demurred to is not a separate defense, but matter in answer to the allegations of the complaint, the demurrer should have been overruled.

It follows that the interlocutory judgment appealed from must he reversed, with costs, and the demurrer overruled, with costs, with leave to the plaintiff to withdraw the demurrer upon payment of costs in this court and in the court below.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred ; Laughlin, J., concurred in result.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.  