
    ATWILL a. LE ROY.
    
      Supreme Court, First District;
    
      Special Term, March, 1857.
    Cause of Action.—Contract.—Tort.—Assignment.
    A. and B. entered into a contract with 0., to render services, and to be paid in stock, which C. falsely represented as valuable ; B. assigned his interest in the contract to A., who thereupon rendered the services, and on being tendered the stock in payment refused to receive it, and brought an action for the value of the services as upon contract,—
    
      Held, 1. That his complaint setting forth these facts was not demurrable, as joining a cause of action upon contract with one for tort, nor as being an action for tort by an assignee of the cause of action. 2. That the action was for fraud, and the summons should have been for relief, and the complaint should have prayed damages. 3. That as A. alone rendered the services, he alone was injured by the false representations, and the cause of action was in him alone.
    Demurrer to complaint.
   Mitchell, J.

—The defendants objecting that there is a misjoinder of causes of action, viz., one in tort and one in contract; the plaintiff answers that the complaint is on contract only, and that the false representations are stated to anticipate the defendants’ answer that they had fulfilled their contract by delivering him the stock which he was to receive under his contract. This admits that the contract has been strictly complied with; but that the mode of payment does not bind the plaintiff on account of the fraud. The action therefore is for the fraud, in representing that the stock was valuable, which was known not to be valuable, and should be for the damages thus sustained. Instead of that, the summons as on a contract, for the recovery of money only, is for payment of a specific sum, and not “ for the relief demanded in the complaintand the complaint demands the specific sum, and not damages. As these defects are not grounds of demurrer, the defendants cannot avail themselves of them in this way.

The defendants object that the representations were made to the plaintiff and his co-contractor, and that an action for tort cannot be assigned (Zabriskie v. Smith, 3 Kern., 322, by Denio). But the complaint shows no cause of action for the tort in the co-eontract8r, as it alleges that shortly after the making of the contract, White, the co-contractor, assigned his interest therein to the plaintiff, and that after the assignment the plaintiff did actually perform the work. If this be so, White suffered no loss, as he did no work, and although the false representation was to the two, the whole injury was to the plaintiff alone, and he alone-had a cause of action.

The complaint is not so certain in this respect as it should be, but that is not a cause of demurrer.

The demurrer must be overruled with costs of the argument, with leave to the defendants to answer; and leave to the plaintiff to amend his summons and complaint, as to the relief sought and in other particulars; and leave to the defendants to move that plaintiff be required to make his complaint more definite and certain, and to conform his summons and prayer of relief to the facts in his complaint, or the statement in the complaint to the relief sought in the summons.  