
    Jacob Postal, Respondent, v. Samuel G. Cohn and Meyer Hecht, Appellants.
    
      Bale of ahorse — a recovery fm' a breach of warranty is not proper in an action based on fraud.
    
    In an action brought in the Municipal Court of the city of New York to recover damages for a fraud perpetrated on the sale of a horse, a recovery cannot be had upon the theory of a breach of warranty accompanying the sale of the horse, even though the proof establishes such a cause of action.
    Hirschberg, J., dissented on another ground.
    Appeal by the defendants, Samuel G. Cohn and another, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 13th day of May, 1902.
    
      George Tonkonogy, for the appellants.
    
      Frank H. Innes, for the respondent.
   Woodward, J.:

The return certifies that the pleadings in this action were oral; tliat the complaint was for deceit and fraud in the sale of a horse ; ” that the answer was a general denial and counterclaim, and that both parties demanded bills of particulars. The record on appeal also contains a written complaint setting forth all the elements of a cause of action for fraud, and a bill of particulars filed by the plaintiff restating in substance the facts alleged in the complaint. The court charged the jury that if they believed no fraud was committed there could be no recovery by the plaintiff, and a verdict was rendered for the plaintiff upon evidence affording no proof of the essential element of scienter. (2 Kent’s Comm. [13th ed.] *482, *489; Attwood v. Small, 6 Cl. & Fin. 444; Oberlander v. Spiess, 45 N. Y. 175.) The only evidence tending to prove that the defendants had knowledge of the alleged unsonndness of the horse was to the effect that on the day of the delivery to the plaintiff the horse was seen “ wringing wet ” while in the defendants’ possession. There is no evidence that this condition had continued for any length of time or that it had been noted on any previous occasion. The defendants, in explanation, say the horse was “ soft.” This evidence was, we think, wholly insufficient as proof of scienter. “ A party, therefore, relying upon the establishment of a cause of action or a right to a remedy against another, based upon the alleged commission of a fraud by such person, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt in order to maintain his claim. When the evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent.” (Morris v. Talcott, 96 N. Y. 100, 107.) It does not appear that the tort was at any time waived, and the authorities in this State do not allow this complaint to be considered as setting forth a cause of action for breach of warranty. “ Where fraud is alleged as the basis of- the action it must be proved. The law will not permit a recovery by proof of a right of action upon contract or of some other character, and this though facts may be stated or may appear which in proper form might sustain such an action.” (Truesdell v. Bourke, 145 N. Y. 612, 617.) The same rule is declared in Degraw v. Elmore (50 N. Y. 1); Ross v. Mather (51 id. 108); Barnes v. Quigley (59 id. 265); Salisbury v. Howe (87 id. 128). Conaughty v. Nichols (42 id. 83) is not out of harmony with these views. As was pointed out in Greentree v. Rosenstock (61 id. 583), that case maintains only that an action upon contract does not cease to be such because the pleading contains an incorrect conclusion of law, having the aspect of a tort. For the same reason Town of Green Island v. Williams (79 App. Div. 260) does not aid the plaintiff. The case at bar is in all material respects similar to Ross v. Mather (supra). In that case the plaintiff had judgment in an action to recover damages upon the sale of a horse. The complaint contained all the elements of a cause of action for fraud; not as averments of conclusions of law, but, as in the case here under review, statements of specific facts. Only a cause of action for breach of warranty was proved. ■ In reversing the judgment of the General Term, entered upon an order denying defendant’s motion for a new trial and directing judgment upon the verdict, the Court of Appeals said: “ The Code never intended that a party who had failed in the performance of a contract merely, should be sued for a fraud, or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct, and there can be no recovery as for a breach of contract, where a fraud is the basis of the complaint.”

Section 107 of the Municipal Court Act (Laws of 1902, chap. 580) requiring that the allegations of a pleading must be liberally construed, does not contemplate such looseness of construction as would be necessary to take this case out of the condemnation of the rule of these decisions. There was rather an entire failure of proof of the cause of action alleged within the meaning of section 173 of that act.

We think the judgment should be reversed.

Goodrich, P. J., Bartlett and Jenics, JJ., concurred; ILirsohberg, J., read memorandum for affirmance.

Hirschberg, J. (dissenting):

I dissent. I think the fact that the horse was delivered in the wet condition testified to, coupled with the fact which the defendants concede, that when he was returned to them the next day he was absolutely w-orthless, is some proof of knowledge on defendants’ part. But that question was not raised on the trial and should not be presented first on appeal.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  