
    LEWIS SIMMONS, et al., Plaintiffs and Respondents, v. JULIUS KAYSER, Defendant and Appellant.
    
      Decided January 7, 1878.
    pleading, —landlord and tenant.
    In an action brought by the lessors against the lessee of certain premises for one quarter’s rent, the lessee, defendant, alleged in his answer that the plaintiffs, with the intent of inducing- defendant to accept the lease, declared, or falsely represented to the defendant, that the plaintiffs’ lease of the premises expired May 1, 1876, whereas they well knew their lease expired February 1, 1876 ; that defendant accepted the lease relying upon these representations, which were made by plaintiff with intent to defraud defendant into accepting this lease; that defendant went to great expense, etc., and was obliged to move out of the premises February 1, 1876, and rent a new store at an advanced rent, at great expense and loss of custom, to his damage, &c. Held, that this defense was insufficient as a bar to the plaintiffs’ claim; that the question of fraud was not raised, as there was no allegation that defendants were deceived, by the alleged fraudulent representations ; that such allegation cannot be supplied by inference or presumption (Lefier v. Field, 51 N. Y. 621); that the defense is also insufficient, in not alleging that defendant was obliged to move, &c., on account of the alleged fraudulent representations, and in omitting to allege any damage therefrom.
    The above allegations were designated in defendant’s answer “a first defense.” Held, that the defendant could not afterwards be allowed to insist that they constituted a counter-claim, and thus mislead bis opponent, there being an omission in the answer to intimate in any way that the defendant intended so to do (Bates v. Rosecrans, 37 JV. Y. 412).
    Curtis, Ch. J., and Sanford, J.
    Appeal from an order sustaining a demurrer to the first defense stated in the defendant’s answer. The facts are sufficiently stated in the opinion of the court.
    
      
      Lewis Sanders, of counsel, for appellant, among other things, urged :
    —I. It may be conceded for the . purposes of this case, that the answer does not set up a defense in bar of plaintiffs’ claim. It is a counterclaim. The learned judge below sustained the demurrer because the answer was called a defense, and not a counter-claim. It has been expressly decided that such misnomer—if such it be—is not an objection of any validity (Springer v. Dwyer, 50 N. Y. 22).
    II. It only remains to be seen whether the facts alleged constitute a counter-claim (Isham v. Davidson, 50 N. Y. 22). An examination of the authorities will show that the case at bar comes within the rule laid down. In Taylor v. Guest (58 N. Y., at foot of p. 266), the court say:—“ There is an absence in this case of any finding that the plaintiff relied upon the false representations.” The answer here alleges a reliance. In Lefler v. Field (52 N. Y. 622), the court says there was no allegation of an “ intent to deceive,” or that the agent was deceived—that is, relied upon the false representations. The answer here alleges, a false representation, with the intent to induce the making of the contract, and with the intent to defraud defendant, and, an acceptance by defendant in reliance upon said representations. The case of Meyer v. Amidon (45 N. Y. 170), and Oberlander v. Spiess (45 N. Y. 177), demonstrate that all the elements of fraud are alleged in the answer necessary to constitute a cause of action. Moore v. Rand (60 N. Y. 211), is a direct authority both in support of the counter-claim and the right to hold plaintiff for damages for fraud without rescinding the contract.
    III. Eviction not necessary to be shown ; may aver a paramount title in existence at time of lease (Grannis v. Clark, 8 Cow. 42). The answer and reply show actual eviction and paramount title.
    IV. Rescission on ground of fraud not necessary to enable party to recover for damages caused by fraud (Van Epps v. Harrison, 5 Hill, 63).
    V. Subsequent dealings under the contract after knowledge will bar rescission of the contract. But in the answer no dealings subsequent to the discovery of the fraud are alleged.
    VI. To enable a party to claim a rescission, he must restore, or offer to restore, all he has received under the contract. But the defendant has received nothing but the premises, which were taken away by paramount title. There is nothing to restore.
    
      R. W. Huntington, of counsel, for respondent, among other things, urged :
    —I. This court has held that whatever is necessary to constitute a defense, whether partial or total, must be averred as well as proved, and that averment is necessary, even where the existence of the fact in question may be presumed from the existence of other facts (Van De Sande v. Hall, 13 How. Pr. 460).
    II. An antecedent fraud, by which one is induced to enter into a contract to his damage, is, when properly pleaded, good as a counter-claim, and nothing else. This kind, of grievance is simply ground for an action of deceit, and is properly a counter-claim in an action upon the contract (More v. Rand, 60 N. Y. 212). Apart from the insufficiency of this new matter as a defense or counter-claim, it is a fatal objection to it, as a counter-claim, that it “ does not purport to be a counter-claim. It designates itself as a ‘ further dedefense’ simply, and there rests. No particular form of words is necessary to make a pleading a counterclaim. The ordinary and most satisfactory form of giving that information is by a statement that the pleading is a counter-claim, or by a prayer for relief. The present pleading, however, contains no words that would have justified the plaintiff in supposing that any personal judgment was sought against him, and in preparing for that emergency” (Bates v. Rosekrans, 37 N. Y. 412).
    III. The only allegation savoring of an eviction is in these words: “that on February 1, 1876, the defendant was obliged to move out of said premises.” The declaration may be true without Showing a' cause of action. The defendant may have been obliged to move out of the premises for a .variety of causes, of which no court can take judicial notice (Grannis v. Clark, 8 Cowen, 136). The court will not aid a pleader who omits a material allegation, the presumption being he could not make it (Hofheimer v. Campbell, 59 N. Y. 269).
    IY. The only allegation in the defense as to the defendant having been influenced by the alleged representation, is “that defendant accepted said lease, relying upon said representations.” This is not enough (Taylor v. Guest, 58 N. Y. 262). If the defense had alleged that the plaintiffs, “by falsely and fraudulently representing that their lease expired on May 1, 1876, induced the plaintiff to accept the lease in the complaint mentioned,” the precedents would have been complied with (§ 2, Chitty’s Pleading, *680, *688). The defense does not raise an issue of fraud, because it fails to allege that the defendant was in fact deceived by the alleged fraudulent representations. All the precedents formally alleged that the complaining party was deceived in fact (Lefler v. Field, 52 N. Y.)
    Y. For the reason stated in Grannis v. Clark, and Lefler v. Field, supra, the court cannot turn this defense into a valid allegation of counter-claim, and thus sustain it as such. Treated as a counter-claim, it does not allege facts sufficient to constitute a cause of action (Co. Pro. § 150, subdv. 1; C. C. P. §495, subdv. 5). But the defendant having compelled us to deal with this part of the answer as a bar, it would be unduly favoring him to turn it into a counter-claim, and would be putting us out of court for not having replied to it, unless leave were given to reply nunc pro tunc. Besides, turning it into a counter-claim would be introducing a new cause of action, and sustaining the demurrer to it as a defense (Edgerton v. Page, 20 N. Y. 284).
    VI. The reply shows that the plaintiffs innocently forgot that their lease expired February 1, 1876, and themselves notified the defendant, who thereupon did not rescind, but continued in possession under a new understanding. A party seeking to rescind a contract must act at once when the cause is discovered ; if he goes on under the contract or negotiates, he loses the right to rescind (Lawrence v. Dale, 3 Johns. Ch. 23, 41; affirmed Ct. of Errors as McNevin v. Livingston, 17 Johns. 437). He must rescind not only at once but in toto (Wheaton v. Baker, 14 Barb. 594; Bruce v. Davenport, 1 Abb. Ct. App. Dec. 233; S. C., 3 Keyes, 474).
    VII. The cases show (particularly Bruce v. Davenport) that fraud is no defense, without rescission and restoration immediately upon its discovery. It is necessary to allege such restoration where the defense is rescission for fraud (Springer v. Dwyer, 50 N. Y.; Dubois v. Hennan, 56 N. Y. 674).
    VIII. The defense demurred to admits the indenture of lease dated March 18, 1875, and taking possession under it, and liability for the rent demanded ; but it represents, that “early in March” (of course prior to the lease) the lessor falsely and fraudulently represented that he had title until May 1, 1876. The counter- claim alleges that the indenture contained a covenant for quiet enjoyment. The defense does not contain this allegation; but it is unnecessary, because every lease implies a covenant for quiet enjoyment (The Mayor, &c. v. Mabie, 13 N. Y. 531). How, inasmuch as a covenant for quiet enjoyment extends to the possession only, and not to the title (Whitbeck v. Cook, 15 Johns. 483), a false representation by the lessor as to the duration of his own term is immaterial, provided he had title sufficient to put the lessee in possession of the' premises, and might perform his covenant for quiet enjoyment. Non constat but that his lease, although expiring on February 1, 1876, contained a right of renewal; or without suclj provision, non constat but that he might have protected the possession of his tenant by new terms with the landlord. This defense is defective, therefore, in not alleging that the damage set up was on account of the alleged false representation prior to the lease, that the plaintiff’s lease did not expire until May 1.
   By the Court.—Curtis, Ch. J.

—The plaintiff’s demurrer is on the ground, that the defendant’s first defense does not state facts sufficient to constitute a defense.

The action is to recover $875, rent for a quarter ending February 1, 1876. The answer contains two ■defenses, separately numbered and stated, the first of which it designates “ a first defense,” and the second of which it designates “a second defense and counterclaim.” Our consideration is confined to the first defense. The first defense is, that the plaintiffs, with the intent of inducing defendant to accept the lease, declared or falsely represented to the defendant that the plaintiff’s lease of the premises leased to the defendant, expired May 1, 1876, whereas they well knew their lease expired February 1, 1876 ; that defendant .accepted the lease relying upon these representations, which were made by plaintiffs with intent to defraud defendant into accepting the lease, and went to great expense in painting the inside of the premises for the purpose of carrying on the general importing ffincy goods business, for which purpose the premises were expressly leased. Also that defendant was obliged to move out of the premises, February 1, 1876, and rent a new store at an advanced rent, at a great loss of custom and- expense, to his damage $2,500.

This defense is insufficient as a bar to the plaintiff’s claim, and does not raise the question of fraud, as it omits alleging that the defendants were deceived by the alleged fraudulent representations. That the defendant was in fact deceived by such representations is the very gist of a defense of this character, and when not alleged, it cannot be supplied by inference or presumption (Lefler v. Field, 51 N. Y. 621).

This defense is also insufficient in not alleging that the defendant was obliged to move on February 1, on account of the alleged false representation, as well as in omitting to allege any damage therefrom.

At the argument, no point was presented by the appellant to sustain the position that this defense was sufficient as a bar to the plaintiff’s claim. On the contrary, it was urged on the part of the appellant, that it was a counter-claim, and was good as such..

If these alleged false representations, pleaded as a defense, are insufficiently pleaded as such, there is an obvious difficulty in construing the same allegations as constituting a good cause of action in the defendant’s favor against the plaintiff, and enforcing it as such. There is an omission in the answer to designate or intimate in any way that the defendant intended to make, what he there calls a first defense,” a counterclaim. If the defendant meant it for a counter-claim, he should have said so, and not called it something else. A defendant cannot thus mislead his opponent, and then take advantage of it, by insisting that it is a counter-claim, if the exigencies of the litigation render that construction of it desirable. The code contemplates no such anomaly in pleading, but intends that a plaintiff shall have a reasonable notice when a defendant makes a personal claim against him, so that he may have an opportunity to prepare for it at the trial (Bates v. Rosecrans, 37 N. Y. 412).

The order appealed from ~ should be affirmed with costs, but 'with leave to the defendant to amend the answer within twenty days on payment of costs.

Sanford, J., concurred.  