
    Dennison I. Dodge, Resp’t, v. Aaron Eckert, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 15, 1893.)
    
    Pleading—Contract.
    The complaint alleged a sale of goods to defendant which had not been paid for, and that defendant obtained credit therefor by false and fraudulent representations. On the trial the sale was proved, but there was no proof that the representations were untrue. Held, that a refusal to non-suit was proper; that the complaint stated a cause of action on contract, and that the portion which charged fraud might properly be rejected by the court as surplusage.
    Appeal from a judgment of the Sullivan county court, affirming a judgment of a justice of the peace in favor of the plaintiff.
    
      Henry J. Williams, for app’lt; J. M. Maybee, for resp’t.
   Mayham, P. J.

This action was prosecuted in justice court upon a complaint which alleged: “That within two years'last past, before the commencement of this action, he (plaintiff) sold and delivered to the defendant goods, wares and merchandise to the value of $70, for which the defendant has never paid; that the defendant obtained credit for said goods by false and fraudulent representation as to his means and ability to pay, which representation was made with intent to defraud the plaintiff, ■and demands judgment for $70 and costs.”

The answer is first, a denial, and second, a set-off and counterclaim.

Upon the trial the plaintiff proved the sale of the goods to the value of $68.10, and at the time of the purchase of the goods by the defendant he represented that one Williams was owing him for work, and that he expected his pay from Williams on a given day, and he would then pay plaintiff for the goods. The plaintiff failed to prove that the representation that Williams owed defendant was untrue, and it appeared on the cross-examination of plaintiff’s witnesses that Williams did in fact owe defendant.

The defendant failed to prove any offset or counterclaim.

At the conclusion of the trial the defendant moved to non-suit the plaintiff on the ground that the plaintiff’s complaint sounded in tort; that there was no evidence of fraud on the part of the •defendant, and no proof that the statements and representations made by the defendant at the time of the purchase of the goods were not true.

The justice refused to non-suit, and rendered judgment for the value of the goods, and from that judgment the appeal was taken.

The only question in this case important to consider is whether the complaint sounded solely in tort, and the action was prosecuted under the complaint for the tort, and not upon the contract or purchase.

If this action had been prosecuted solely for the tort without any allegation of a contract from which an obligation on the part of the defendant to pay could be legally inferred, then it would be necessary for the plaintiff, before he could recover, to prove the-wrong, as the wrong in that event would be the gravamen of the action; but where the complaint contains an allegation of a cause of action in contract not sounding in tort, although it may also charge tortious acts on the part of the defendant, the plaintiff will be allowed to recover upon the allegation of his complaint resting in contract, and the allegations of wrong in the complaint may be treated as surplusage. Under the liberal practice of pleading adopted by the Code, especially in courts of justice of the peace, pleadings are construed liberally with a view to the promotion of substantial justice between the parties. “In pleading under the Code, it is sufficient to state facts from which the law infers a liability or implies a promise." Zabriskie v. Smith, 13 N. Y., 330.

Although facts are stated in a pleading which are unnecessary to be proved to constitute a cause of action or defense, they may be disregarded upon the trial. Bedell v. Carll, 33 N. Y., 581.

A complaint containing a statement of facts constituting a cause of action on contract, sustained by proof of such facts upon the trial, authorizes a recovery, although the complaint is in form for a conversion. Conaughty v. Nichols, 42 N. Y., 83.

We are, therefore, of the opinion that the justice was right in refusing to nonsuit the plaintiff in this case; that the complaint stated a cause of action on contract, and that that portion of the complaint which charged fraud might properly be rejected by the court as surplusage and that the judgment rendered in such a case is a judgment on contract, upon which the party could not be arrested on final process.

Judgment of the county court and that of the justice court affirmed, with costs.

Putnam and Herrick, JJ., concur.  