Hartshorn v. Newman

By the Court.—Ingraham, P. J. This action was against the .defendants for selling to the plaintiff a note, which they falsely represented to be a business note, &c., and claiming to recover from them, for the fraud and deceit, the value of the note so sold. On the hearing of the motion, I thought that as the plaintiff could only recover- the amount of the note and interest, he could take judgment for that amount, and no application to the court was necessary. Hpon more reflection, however, I am satisfied that the note is to be considered only as inducement to the action, and the true cause of action is the fraud and deceit. In such a case the application for judgment must be to the court, and the summons should have corresponded with the complaint. The cases of Ridder a. Whitlock (12 How. Pr., 208) and Tuttle a. Smith (6 Abbotts’ Pr., 329; S. C., 14 How. Pr., 395), are authorities on this point. The order must be reversed and the motion granted, with $10 costs, with leave to plaintiff in twenty days to amend summons on payment of such costs, and without prejudice to the order of arrest. Peckham and Leonard, JJ., concurred.