
    Julius Stern et al., Respondents, v. Leo Kareski et al., Appellants.
    (New York Common Pleas
    Additional General Term,
    April, 1895.)
    Defendants purchased certain goods from the plaintiffs on a credit of ten days, induced by their representations that they did not owe more than §700; that they were in no trouble whatever; that there was no mortgage on the property nor had they given any bill of sale; that there would not he any given within a short time, and that they were perfectly sound and responsible. When the credit matured the defendants claimed to have sold out the business Decause they owed more than §700, and that they were working on a salary. It appeared from the cross-examination of one of the defendants that they owed over §700, had sold their business for §400, and that the vendee sold the same to said defendant’s wife a few days later. Held, that this testimony sufficiently showed scienter, and that a case of false representations was fully made out.
    Appeal by the defendants from a judgment in the District Court in the city of New York for the eleventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiffs.
    The nature of the action and the facts, so far as they are material, are stated in the opinion.
    
      Samuel J. FramJeenstein, for appellants.
    
      Robert Greenthal, for respondents.
   Giegerich, J.

This action was brought to recover damages for false and fraudulent representations. The answer was a general denial.

The pleadings were oral. The plaintiffs are copartners, doing business under tire firm name ot Stern & Saalberg, and the defendants wore, during the time or times of the transactions hereinafter x-oferred to, copartner’s in business. From the testimony adduced on the part of the plaintiffs it appears that before the sale of certain goods, consisting of confectionery, by the plaintiffs to the defendants, the defendant Kareski represented to Stern, one ot the plaintiffs, that the defendants did not owe over $700; that they were in no trouble whatsoever ; that there was no mortgage upon their property nor had they given any bill of sale; and that there would not be any such given within a short time; such defendant further showed to Stern a bill that he had, in order to confirm his statement that the defendants were “perfectly sound and responsible.” It further appeared that but for these representations, which the plaintiffs believed and upon which they relied, they would not on the same day have sold the goods in question, as they did, on a credit of ten days ; that when the claim became due the defendant Falk stated to Saalberg. one of the plaintiffs, that the defendants had disposed of their business and were only working in their late place of business on a salary; that they had to sell the business because they owed more than $700 and were in trouble. After the plaintiffs had rested, the defendants moved for a dismissal of the complaint on the grounds “ that the plaintiffs had faffed to prove facts sufficient to constitute a cause of action, in that they have failed to prove that the representations which the defendants are alleged to have made were false at the time they made them and xvere known to them to be false at the time they made them, and that there has been no fraud provenalso, upon the same grounds for a direction of a verdict in their favor, which motions were denied, and renewed upon the close of the entire case, and the defendants excepted.

The essential constituents of an action to recover damages for false and fraudulent representations (see Steinam v. Bell, 7 Misc. Rep. 318 ; 57 N. Y. St. Repr. 462; 27 N. Y. Supp. 905) are amply supported by the evidence in this case, and, therefore, said motions were, in our opinion, properly overruled.

The representations were not denied by the defendants, and it appears conclusively from the cross-examination of the defendant Falk, who was the only witness called for the defense, that the amount of the defendants’ debts was over $700 ; that they sold their business to one Frankel for $400, and that a few days thereafter the latter sold the same to the wife of the defendant Falk. This testimony, in our opinion, effectually disposes of the contention of the defendants, that the scienter had not been proved.

The appellants’ argument and brief upon this appeal are founded upon a misconception of the nature of the action, and, therefore, the authorities cited by them in support of various propositions are inapplicable.

The defendants’ exceptions taken to the rulings on the trial ajopear to be without merit, and we think the judgment should be affirmed, with costs.

Bisohoff, J., concurs.

Judgment affirmed, with costs.  