
    MARY BOWMAN, Plaintiff, v. ANDREW G. PURTELL, Defendant.
    I. Complaint, construction op, on appeal.
    1. TWO CAUSES OF ACTION—CONTRACT AND TORT— WHEN NOT REGARDED AS CONTAINED IN; BUT AH CONTAINING A SINGLE CAUSE OF ACTION IN TORT.
    
      (a) Where there are averments which, taken by themselves,, would constitute a cause of action based, on contract, but not stated as constituting a separate cause of action, but, on the1 contrary, so intimately interwoven with other averments as to show that the whole theory of the action was based on tort, the averments in the complaint showing a cause of actionin’ tort; and, upon a motion being made after all the evidence-was in, for a dismissal of the complaint, on the ground that the evidence did not sustain the cause of action in tort alleged in the complaint, the plaintiff made no claim to recover on a cause-of action upon contract claimed to be set forth in the complaint; and the court granted the motion, to which plaintiff' excepted; and the court ordered the exceptions to be heard! in the first instance at general term:
    Held,
    that the complaint must be regarded as containing but a: single cause of action, viz.: one on tort, and that plaintiff could not sustain his exception on the ground that the evidence sustained those averments in the complaint, which, if taken separately, might be deemed to state a¡ cause of action on contract.
    1. Sparman v. Keim, 44 27. 7. Super. Ct. 198,—its principle in this respect followed.
    2. Sparman v. Keim, 83 27. 7. 245 (reversing 44 27. 7! Super. Ct.),—distinguished.
    
      Before Sedgwick, Ch. J., Fkeedman and Tbuax, JJ.
    
      Decided June 18, 1881.
    Exceptions of plaintiff ordered to be heard in first instance at general term, upon dismissal of the complaint at trial term.
    The facts sufficiently appear in the opinion.
    
      J). 8. Riddle, attorney and of counsel, for plaintiff, after contending that there was sufficient evidence of the fraud, urged :
    I. Aside from fraud, the plaintiff had proved sufficient allegations to entitle her to a verdict. In each cause of action set out in the complaint, it is alleged, that at defendant’s request, she gave or loaned him the money named, and at the end of the complaint it set forth that these various sums-are not paid. Each of these allegations was proved. As to non-payment, her testimony is : “I let Purtell have the money. The stock was sold for his benefit. It is the money I am looking for now which is equivalent to say he has not paid. At least, this was sufficient to go to the jury for them to say whether he had paid her back. But payment is a defense, and nonpayment need not be proved by the plaintiff (Keteltas v. Myers, 19 N. Y. 231; Halsman v. De Gray, 6 Abb. Pr. 79; Denmark v. Denmark, 13 How. Pr. 372). And it was not necessary to prove the allegations of fraudulent representations. They do not constitute the gravamen of the causes of action ; they are mere inducements. The gravamen of the action is the loaning and the non-payment of the money. It would be extraordinary to turn the plaintiff out of court after she has proved that the defendant got from her on various pretenses over $18,000, which he still has (Graves v. Waite, 59 N. Y. 156, 160-161). There was a reargument, in which the court was urged to apply to this case the decision made in Ross v. Mather, by the commission of appeals, 51 N. Y. 108, but the court unanimously declined (Elwood v. Gardner, 9 Abb. Pr. N. S. 99 ; Byxbie v. Wood, 24 N. Y. 607, 610; Ledwich v. McKim, 53 Id. 307, 316 ; Neftel v. Lightstone, 77 Id. 96; Knapp v. Roche, 37 Super. Ct. 395). In all the cases where the court held that, if the complaint alleges fraud or deceit the plaintiff could not recover on simply proving a cause of action on contract, either the complaint did not set up allegations constituting a cause of action on contract beside the allegations of fraud, like in Barnes v. Quigley, 59 N. Y. 265; Degraw v. Elmore, 50 Id. 1; Sager v. Blain, 44 Id. 445 ; Walter v. Bennett, 16 Id. 250 ; Dudley v. Scranton, 57 Id. 24; or the allegations on contract were so coupled with the allegations of fraud as to be an inseparable part of the charge of fraud ; as in Ross v. Mathers, 51 N. Y. 108. But in the case at bar there is no such connection. The case materially differs from Ross v. Mathers, supra. The only case which is against the plaintiff is Peck v. Root, 5 Hun, 547. This is a decision of two judges only—the third justice dissents and agreed with the judge at circuit. That is, two judges were opposed tó two judges. This last decision was based on Ross v. Mathers, 51 N. Y. 108, which the court in Graves v. Waite, 59 Id. 156, refused to follow.
    II. The gravamen of an action is the substantial! cause of the action. If fraud or deceit in this complaint is the gravamen of the action, then all other allegations are mere surplusage, and may be stricken out. But if you strike out here the allegations constituting an action on contract, and which the plaintiff proved, no cause of action will remain in the complaint. On the contrary, if you strike out all the allegations of fraud and deceit, the allegations on contract —her loaning the defendant the moneys on his request—remains, and constitute a complete cause of action. Is it not plain, therefore, that the loaning of the moneys to defendant constitutes the gravamen of the action, and not the fraud, since the former constitutes a cause of action while the latter by itself does not ?
    III. On the motion for dismissal of the complaint, the defendant did not claim, and it is not pretended that the allegations of fraud and deceit in the complaint misled him-. His answer is a general denial. He therefore denied the allegations of loaning him the moneys at his request as well as the fraud, and to succeed in his defense he would have been bound to prove that he did not receive any of the moneys, as well as that he made no fraudulent representations. He seeks to prevail on a technicality which worked him no wrong or inconvenience.
    IV. Nor is it an objection that upon the complaint an execution against the person might be issued although no fraud was proved upon the trial (Woods v. Henry, 40 N. Y. 124; Elwood v. Gardner, 45 Id. 349).
    
      Reddy & Fromme, attorneys, and Jacob Fromme and Samuel Jones, of counsel, for defendant, urged:—
    I. The whole frame work of the complaint is in fraud, deceit and false pretenses made by the defendant to obtain these various sums of money. Fraud, deceit and false pretenses are the substantial causes of action. Therefore the complaint was properly dismissed (Peck v. Root, 5 Hun, 461; Combs v. Dunn, 56 How. Pr. 169; McMichael v. Kilmer, 75 N. Y. 40 ; Barnes v. Quigley, 59 Id. 265; Ross v. Mather, 57 Id. 108, 111, 121; Degraw v. Elmore, 50 Id. 45).
    II. The allegations of fraud were not surplusage. Upon the face of the complaint the plaintiff, if she recovered, was entitled to an execution against the defendant’s person, without obtaining an order to arrest in the action (Code, § 549, subd. 2; Id. § 1487, subd. 1).
   By the .Court.—Sedgwick, Ch. J.

The learned counsel for plaintiff, appellant, in his argument says : “The complaint alleges the different loans made at defendant’s request and their non-payment. It also sets up certain statements and representations made by defendant to induce her to let him have these moneys, that they were false, and she was induced thereby to give him these moneys.” The complaint shows that the plaintiff claimed that these representations were of matters of fact, and that they were made falsely, knowingly and. fraudulently by the defendant. There can hardly be a doubt that the complaint contained statements of causes of action in tort from false representations. ' There are in the complaint allegations of ten causes of action of this kind, set out in twenty-two paragraphs. The twenty-third paragraph alleges ‘ ‘ that the defendant promised at the time he obtained the aforesaid sums of money respectively, to repay the same to the plaintiff, and he received the same upon such promise.”

On the trial, after plaintiff’s case was in, the counsel for defendant moved to dismiss the complaint on the grounds “ that the gravamen of the whole of the complaint is fraud, deceit and false pretenses, and that no evidence tending to show either fraud, deceit or false pretenses has been produced. That the plaintiff has failed to prove her causes of action alleged in the complaint.” The record states that the motion was granted and plaintiff’s counsel excepted.

On the argument of this appeal the counsel for appellant did not take the position that the complaint did not state causes of action-in tort. He argued that it did, and that there was sufficient proof to sustain .them. He also argued that the complaint stated a cause of action on contract.

At every stage of the case these claims were inconsistent. The plaintiff could not in one breath claim for both in one action. Necessarily she should have chosen one to the exclusion of the other. On the trial the counsel for the defendant asserted that the gravamen of the complaint was in tort. And it was exactly true, that the action was quite as much in tort as it was in contract. If you suppose that the plaintiff’s counsel claimed that the complaint did contain a cause of action on the promise, nevertheless there is no intimation that he claimed to recover upon that. The correct inference is that he claimed to recover in tort. By doing that he abandoned the other inconsistent claim, as has been already stated. Even on the appeal, he did not abandon the tort, but claimed an alternative right.

I am of the opinion that the testimony did not sustain the action for false representations stated in the complaint, and that, as the case was tried-as one in tort, the action of the judge in dismissing the complaint should be dismissed.

The case of Sparmann v. Keim (44 N. Y. Super. Ct. 163) was reversed in the court of appeals. The case there has not been reported, but a manuscript copy of the opinion shows that the reversal was placed upon the ground that the complaint did not state any cause of action for fraud.

Exceptions of plaintiff overruled, with costs, and judgment for defendant directed.

Freedman and Truax, JJ., concurred. 
      
       Reported 83 N. Y. 845.
     