
    Richard M. Bell, Appellant, v. Thomas L. James and Others, Respondents, Impleaded with Abel H. Gilbert.
    Second Department,
    October 22, 1908.
    Fraud— gravamen, of common-law action —negligence not inconsistent with absence of fraud — fraud of one of several defendants — appeal — effect of failure to print evidence — findings, how construed.
    The gravamen of a common-law action for deceit is actual fraud and nothing else will sustain it. . .
    In an action to charge the directors of a corporation with a conspiracy to put out false statements as to the affairs of the corporation so as to induce others to invest their money, when in fact the corporation was insolvent, it is necessary to show that" they entered into such conspiracy or concerted action ' knowing that the statements issued by them were false and for the purpose of producing the fraudulent result. Mere proof of the negligence of such directors is not proof of the affirmative fraud necessary to sustain the action, and hence a finding by the court of lax and improper conduct on their part is not inconsistent with a finding that they were not guilty of fraud,
    A finding that one defendant in order to carry out a fraud imposed upon the confidence of his codefendants and led them to close their eyes to the real truth, is not inconsistent with a finding that they themselves were not guilty ■ of fraud.
    Where the evidence is not contained in the case on appeal, the court will assume that the facts provéd were sufficient to sustain the express findings, as well as any additional findings necessary to support the conclusions of law if they are not in conflict with the affirmative facts found.
    It is only where findings cannot be reconciled under any reasonable construction -■ that the appellate court is bound to accept those most favorable to the appellant.
    Appeal by- the plaintiff, Richard M. Bell, from a judgment of the Supreme Court in favor of. certain of the defendants, entered in the office of the clerk of the county of Queens on the 22d day of April,1908, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having, been waived, and also from an order entered in said clerk’s office on the 12th day of May, 1908, amending the decision filed herein.
    
      Edward P. Lyon,, for the appellant.
    
      William Hepburn Russell [A. J. Dittenhoefer, Edwin L. Scofield and Charles A. Deshon with him on the brief], for the respondents.
   Woodward, J.:

This action was-brought by a stockholder of the Anglo-American Savings and Loan Association against the former directors of tlie association, the theory of the action being that the directors entered into a conspiracy or concert of action for the purpose, of putting out false statements as to ■ the affairs of the association, which induced the plaintiff and others to invest their money, and to keep the same invested, at a time when the association was, in fact, insolvent. In. other words, the action is one at common law for deceit, and in actions of this character the “ gravamen of the action is actual fraud, and nothing less will sustain it. The representation upon which it is based must be shown not'only to have been false and material, but that the defendant when he made it knew that it was false, or not knowing whether it was true or false.and not caring what the fact might be, made it recklessly, paying no heed to the injury which might ensue. Misjudgment, however gross, or want of caution, however marked, is not fraud. Intentional fraud, as distinguished from a mere breach of duty or the omission to use due care, is an essential factor in an action for deceit. The man who intentionally deceives another to his injury should be legally responsible for the consequences. But if through inattention, want of judgment, reliance upon information which a wiser man might not credit, misconception of the facts or of his moral obligation to inquire, he makes a representation designed to influence the conduct of another, and upon which the other acts to his prejudice, yet if the misrepresentation was honestly made, believing it to be true, whatever other liability he may incur he cannot be made liable in an action for deceit.” This is the doctrine quoted by this court with approval in the case of' Lyon v. James (97 App. Div. 385, 390; affd., 181 N. Y. 512), and we are able to discover- no reason why it is not controlling here. The plaintiff does not make a case and print all the evidence; he relies upon alleged inconsistencies in the findings of fact, in so' far as they relate to the defendants other than Gilbert, against whom judgment is rendered.

If the action was one against the directors for negligence in the conduct of the affairs of the corporation, there are undoubtedly findings of fact which are-inconsistent with the.conclusions reached in this case, but where the gravamen of the action is deceit amounting to a fraud, the mere fact that the court finds facts which indicate a very lax and improper discharge of the duties of directors, is not inconsistent with the fact that the defendants were not guilty of actual fraud. To constitute the cause of action which the plaintiff has attempted to establish against the defendants in this casé, it •is necessary to show that they entered into a conspiracy Or concert of action for the purpose of putting out the literature which is alleged to have constituted the basis of the deception, and that they did this knowing the statements were false, and for the purpose of producing the fraudulent result. We cannot say Xvhat the evidence is. in this case,-for it is not before us, but from the discussion of the question by plaintiff’s counsel, it is evident that the evidence fails to disclose any motive for-such a conspiracy on the part of the directors other than Gilbert, and the most that is claimed is that the conduct of these defendants was- such that they ought, in the nature of things, to have known the facts and been aware of their misleading and fraudulent tendencies. But the rule is well established that fraud must be proved; it is never to be presumed, and mere evidence of negligence is not evidence of affirmative fraud, such as is necessary to sustain the cause of action here asserted. "Where the evidence given on a trial is not contained in the case on appeal to this court it must be assumed that the facts proved were sufficient to sustain the findings, and also to sustain any additional findings required to support the conclusions of law not in conflict with the affirmative facts found. (Berger v. Varrelmann, 127 N. Y. 281, 293, and authorities there cited.) In this case the facts found undoubtedly show great want of care and prudence on the ■part of the members of the board of directors of the Anglo-American Savings and Loan Association, -.but this is a long way from establishing that men of responsibility and standing in the community have deliberately entered into a conspiracy of understanding for the purpose of issuing and circulating false and misleading statements of the affairs of the corporation. That is in its essence a crime, and there can be no presumption of crime growing. out of mere carelessness in not being better informed as to the truth of the situation. The findings, .which, it does not appear necessary to review in detail, are entirely consistent with the theory that Gilbert made use of the other defendants to carryout his fraud; that he imposed upon their confidence, leading them to close their eyes to the real truth, and these findings are not inconsistent with the ulti-. mate facts as found upon the,trial, and which hold that the defendants other than Gilbert were not guilty of fraud as it is defined and understood in this class of actions.

This disposes of the contention of the plaintiff that lie-is entitled to the most favorable view of the findings on this appeal, and, therefore, to a reversal. It is the duty of the court to reconcile; findings, and it is only when this cannot be done, under any- reasonable construction, that it is bound to . accept the findings, most favorable to the appellant. (Traders' Nat. Bank v. Parker, 130 N. Y. 415, 417, and authority there cited.) In this case there is no inconsistency in the findings; some of them show distressing negligence on the part of the defendants, but none of them shows that the defendants other than Gilbert had any purpose of deceiving the plaintiff and others, or that they had any intention of deceiving, and so the finding that the defendants, cither than Gilbert, were not guilty of acts amounting to fraud, is not inconsistent, and gives no ground for a reversal of the judgment in part.

The judgment appealed from must be affirmed.

Hooker,Rich and Miller, JJ., concurred; Jenks, J., concurred in result.

Judgment and order amending decision affirmed, with costs.  