
    THE NEW YORK LAND IMPROVEMENT COMPANY, Appellant, v. WILLIAM S. CHAPMAN, Respondent.
    
      False and fraudulent representations.
    
    The alleged false representations did not destroy any of plaintiff’s rights, nor induce plaintiff to discontinue or abandon any proceeding taken or act done towards the enforcement of his rights. All that appears from the allegation of the complaint, is that defendant, by Ms representations induced plaintiff to abandon an intention.
    
      Held, it is impossible to assess damages in such a case. The plaintiff parted with nothing of value because of the representations.
    Before Sedgwick, Ck. J., Tritax and Dugro, JJ.
    
      Decided March 14, 1887.
    Appeal from judgment entered on a dismissal of complaint before a jury.
    The complaint alleged that the plaintiff made to a firm, styled Groot & Chapman, composed of the defendant and two others, a lease of certain rooms for one year, to begin May 1, 1882, at the yearly rent of $4,500, payable quarterly, and in addition thereto $12 monthly for janitor’s fees; that the lessees entered; that on August 1,1882, $1,125 “became due as rent, besides some other amount for janitor’s fees; that the same was not paid, and the said lessees were in default for payment thereof; that by the terms of the lease, on default in payment of rent, the lessors were entitled to enter upon and take possession of said premises, and also to dispossess said lessees, in accordance with the statute in such case made and provided, and to lease said premises to others; that thereafter and about August, 1882 and afterwards, the defendant, William S. Chapman, to induce the plaintiffs not to re-enter and take possession of said premises or dispossess said lessees and lease said premises to others, but to allow said lessees to remain in possession and use thereof, fraudulently and falsely stated to and represented to plaintiff, that said lessees were entirely solvent and able to pay the rent of said offices, etc;” that “plaintiffs could at said time, have rented said premises to responsible persons for the remainder of the term aforesaid, at a rent at least as large as received in the lease aforesaid, and had applications at said time, for a lease of said premises and so informed said defendant, and said defendant for the purpose aforesaid, on said several occasions repeated said representations to plaintiff; that said representations were false and were made with the fraudulent purpose above set forth, of deceiving the plaintiff and inducing plaintiff to allow said lessees to remain in possession of said premises; that plaintiff, in reliance upon said representations and in consequence thereof; allowed said lessees to remain in possession of said premises, until January 1, 1883, and refrained from re-entering upon the premises or dispossessing said lessees, and refused to lease the same to the other parties applying therefor; ” that at the time, etc., the said lessees were insolvent etc., as the said defendant then and there well knew ; that “ plaintiff brought suit for said amount under the covenant in said lease, and recovered judgment thereon for the sum of $3,168.98; that execution has been issued against said lessees and returned unsatisfied, and said lessees state and declare that they have no property of any kind, nor has either of them, and are unable to pay the same; that by reason etc., plaintiff has suffered damage in the sum of $3,500.”
    On the trial, before any testimony was offered, counsel for defendant moved to dismiss the complaint. The motion was granted, and the appeal is from the judgment of dismissal.
    
      Parish & Pendleton, attorneys and F. K. Pendleton of counsel for appellant.
    
      Hector M. Hitchings, for respondent.
   Per Curiam.

The face of the complaint shows that at the time of the alleged false representations made by defendant, his firm, the lessees, were rightfully in possession of the term of the lease, and of the premises. The plaintiff’s right to re-enter for non-payment of rent or to dispossess for the same reason, did not put an end to the term or the lease. Until there was an actual exercise and enforcement of plaintiff’s right, the term would not be ended or the plaintiff have the power to oust the lessees. The alleged false representations did not destroy any of plaintiff’s rights nor induce plaintiff to discontinue or abandon any proceeding taken or act done towards the enforcement of its right. All that appears, in substance, on the face of, the complaint is that the defendant induced the plaintiff to abandon an intention. It is impossible to assess damages in such a case. The plaintiff parted with nothing of value. The learned judge was correct in dismissing the complaint on this ground. This result is sustained by considerations adduced in Wimple v. Hildrick, 10 Daly, 481.

Judgment affirmed with costs.  