
    Nathan C. Smith, Respondent, v. Lyman J. Smith and E. L. Johnson, Appellants.
    
      Action in tort—-based upon fraudulent representations inducing one to take a note — the plaintiff cannot recover on the note without proof of the fraud.
    
    The complaint in an action, brought in a Justice's Court, set forth a promissory note made by the defendants, and then alleged that certain representations were made by the defendants as to their responsibility; that the representations were false to the knowledge of the defendants, and made with intent to deceive the plaintiff; that the plaintiff, believing the false representations and relying upon them, loaned to the defendants the sum of §150, and took their promissory note therefor, payment of which had been demanded and was refused, and demanded judgment for its amount and interest.
    The plaintiff recovered before the justice, who issued a transcript of the judgment to the County Court, which recited that the defendants were liable to execution against their persons.
    The defendants appealed to the County Court, where a new trial was had, upon, which the plaintiff gave no evidence ténding to support his allegations of fraud, but proved the note and asked permission to amend the complaint to conform to the proof, hy striking out the allegations of fraud. The court held that the amendment was unnecessary; that the plaintiff having proved a good cause of action was entitled to recover'under the allegations of the complaint as it was, and directed a judgment for the plaintiff.
    
      Held, that the recovery was improper;
    That the complaint stated a cause of action based upon fraud, and that it was erroneous in the court below to allow the plaintiff to recover as in an action upon contract, based upon the note;
    That the court below was correct in denying the motion made to amend the complaint, as the effect of the amendment would have been to substitute a different cause of action from that stated in the complaint.
    Appeal by the defendants, Lyman J. Smith and another, from a judgment of the County Court of the county of Broome in favor of the plaintiff, entered in the office of the cleric of the county of .Broome on the 26th day of September, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Broome County Court upon an appeal from a judgment rendered by a justice of the peace.
    This action was commenced on the 6th day of March, 1895, before a justice of the p>eace of the county of Broome. The complaint therein was as follows, viz.:
    “ Plaintiff complains of the defendants and alleges:
    “ That, the defendants- herein on or about the 12th day of April, 1894, for a valuable consideration executed and delivered to the plaintiff herein their promissory note, in writing, which said note is hereto attached and made a part of this complaint.
    “ That on or about the 14th day of April, 1894, the defendants willfully, wrongfully, falsely, and knowing the same to be false, represented certain matters to this plaintiff to be true, with intent to cheat and defraud this plaintiff out of the sum of $150.00.
    
      “ That plaintiff believing the false and fraudulent representations made by defendants to be true, loaned them the sum of $150.00 on the 15th day of April, 1894, with full faith as to their responsibility financially, and took as an evidence of such loan the promissory note hereto attached.
    “ That the defendants represented to plaintiff that they, were financially responsible for the sum so advanced, vvhen in truth and in fact they, and each of them,' knew that such statements were false and untrue.
    
      “ That payment of said promissory note was duly demanded of both the defendants herein and refused.
    “ That there is now due and owing plaintiff by defendants the sum of $150,00, and interest thereon from the 14th day of April, 1894, no part of which has been paid. That the defendants herein both reside in the city of Binghamton, county of Broome, N. Y.
    “ Wherefore, plaintiff demands judgment'against defendants for the sum of $150.00, and interest from April 14th, 1894, with costs.
    “ NATHAN SMITH,- Plaintiff.
    
    
      “ (Copy of note attached to complaint, forming a part thereof.) “$150. Bihghamtoh, N. Y., Apr. 12th, 1894.
    “ The Merchants’. National Bank. Six months from date I promise to pay Nathan C. Smith $150.00
    “ With use. Dollars.
    “ With use.
    “ Lyman J. Smith. E. L. JOHNSON.”
    The answer was an oral one, consisting of a general denial of the complaint.
    Thereafter, on March 30, 1895, the justice rendered judgment in favor of the plaintiff for the amount claimed in the complaint. The record shows that on April 6, 1895, a transcript of said judgment was issued containing the words “Defendants' liable to execution against their persons ” — pursuant to the .provisions of section 3018 of the Code of Civil Procedure.
    An appeal was taken from said judgment by the defendants to the County Court of Broome county, they in the notice of appeal demanding a new trial in said court. Such trial was had before the county judge of said county and a jury on September 22, 1895.
    On the trial the plaintiff proved the execution of the note, a copy of which was attached to the complaint, but offered no evidence to sustain the allegations of fraud therein contained. The plaintiff thereupon moved to amend the complaint so as to conform to the proof by striking therefrom the allegations of fraud. • The court below held that the plaintiff having proved a good cause of action on contract was entitled to recover under the allegations of-the complaint as it was, and that an amendment was unnecessary, and for that reason denied the motion. The plaintiff thereupon rested and the court directed a judgment in his favor and against1 the defendants for. the amount claimed. The defendants made the proper objecl tions' and exceptions to such direction, rulings and dispositions of the case by the court below.
    
      T. B. & I. M. Merchant, for the appellants.
    
      Frank H. Short, for the respondent.
   Putuam, J.:

We think that the complaint states a cause of action for an alleged fraud. The plaintiff therein sets forth the representations made by the" defendants as to their responsibility;. that said representations' were fál'sé. and fraudulent to the knowledge of the defendants, and made wrongfully and willfully with intent to deceive the plaintiff ; that he, believing such false-representations made by the-defendants to be true, loaned them the sum of $150, relying upon-"the .repre-r sentations made by them as to their responsibility, and took the noté attached-¡to the complaint; that payment, of -said note was. duly demanded by plaintiff of the defendants and refused, wherefore.plain* tiff demands judgment for $150 and interest.

As said in Ross v. Mather (51 N. Y. 108-110) “ the complaint contains all the elements of a complaint for a fraud.” It does - not set forth a, cause of action on a promissory note, but one arising from certain fraudulent representations made by the defendants, known by them to be false, with intent to defraud the plaintiff, and by which he-was induced to advance $150 and take the note in question,, and hence was defrauded and damaged to the amount thereof. • -

Under this complaint, on the judgment rendered by the justice of the peace, that officer-was authorized to issue an execution against the persons of the defendants by virtue of the provisions of sections '2895 and 3026 of the Code of Civil Procedure, and in the transcript delivered' to the plaintiff he properly inserted the words a defendants liable to' execution against their persons.” ;

Our attention is called to a similar complaint in Peck v. Root (5 Hun, 547), which was held to set forth a cause. of action in tort* (See, also, Combs v. Dunn, 56 How. Pr. 169 ; Freeman v. Leland, 2 Abb. Pr. 479.) Hence the gravamen of the action, as stated in the complaint, being for fraud, the court below was not authorized to allow a recovery for a breach of contract. (Ross v. Mather, 51 N. Y. 108; Barnes v. Quigley, 59 id. 265; Truesdell v. Bourke, 145 id. 612-617.) There are a class of cases, some of which are cited and referred to by the learned counsel for the respondent, holding that where the gravamen of an action is breach of contract, the addition of irrelevant or unnecessary allegations of fraud in the complaint will not affect the nature of the action or the remedy therein. (Graves v. Waite, 59 N. Y. 156; Tuers et al. v. Tuers, 100 id. 196.)

The distinction between such cases and the one under consideration is noticed by Finch, J., in Salisbury v. Howe (87 N. Y. 134).

In this case the complaint clearly sets forth a cause of action to recover damages alleged to have been sustained by the plaintiff by reason of the fraudulent representations of the defendants. Had the plaintiff simply counted on the note described in the complaint, the defendants might not have interposed a defense to the action. But they were compelled to defend the action actually brought by the plaintiff, as stated in his complaint, or suffer a judgment adjudging them guilty of fraudulent representations, under which they were liable to be arrested. So, when a recovery was had against them in the Justice’s Court they were compelled to appeal to the-County Court. 'Under the circumstances the disposition of the case by the court below, allowing the plaintiff on the trial to-aban don his claim for damages for the alleged false and fraudulent representations of the defendants and recover as in an action on the note, was not only unauthorized, but unjust to the defendants.

We are of the opinion that the court below was right in denying the motion of the plaintiff to amend the complaint, on the ground that an amendment on the trial substituting a different cause of action from that stated in the complaint is unauthorized. (Freeman v. Grant, 132 N. Y. 22-29.) This is especially the case on a, new trial in the County Court on an appeal from a Justice’s Court.

The judgment should be reversed and a new trial granted, with: costs to abide the event.

All concurred.

Judgment reversed, new trial granted, costs to abide the event.  