
    JACOB P. MARSHALL, Appellant, v. JOSEPH L. FOWLER, Survivor, etc., Respondent.
    
      Sale —false representations — Pleading.
    
    The plaintiff brought this action to recover damages for fraudulent representations made on a sale of twenty-four hundred and ten barrels of apples. By the complaint the fraud was alleged to consist in the representation, that they were “ a first rate and choice lot of Niagara county winter apples,” and it was alleged that such representation was false and fraudulent, known to the defendant to be untrue, and made with intent to deceive and defraud the plaintiff. Held, that to entitle the plaintiff to a recovery it was necessary to prove that the representation relied upon was known by the defendant to be false. In order to enable plaintiff to recover, on showing that defendant made the false representations without knowing the condition and quality of the article sold, the fact should have been alleged in the complaint. (Marsh v. Father, 40 N. Y., 562-565 ; Hubbell v. Meigs, 50 id., 480, 489; Bilis v. Andrews, 56 id., 83, 87; Binnard v. Spring, 42 Barb., 470; Indianapolis, ete., B. B. Oo. v. Tyng, vol. 4 N. Y. Sup. Court Bepts., 524, 533,534; S. 0., 2 Hun, 311; Stone v. Benny, 4 Mete., 151,162, 2.)
    Appeal from a judgment recovered on the dismissal of the plaintiff’s complaint at the Circuit.
    
      William W. Wiles, for the appellant. A. Hamilton Webster, for the respondent.
   Opinion by

Daniels, J.

Brady, J., concurred.

Judgment affirmed.  