Opinion
June Term, 1901.
George W. Glaze, for the appellant.
John H. Thompson, Jr., for the respondent.
On demurrer these allegations of the answer are entitled to every legal intendment fairly embraced therein. The sole question for our consideration is whether they are sufficient to constitute a defense. Defendant has elected to retain the premises conveyed to him, thereby affirming the contract, and to counterclaim his damages in tort. This he may do provided his pleading is sufficient. ( Krumm v. Beach, 96 N.Y. 398.) It is necessary for a party seeking to recover or offset damages on this ground to allege and prove the making of false representations with knowledge of their falsity, by which he was deceived and upon which he relied, and in consequence of which he sustained damages. ( Arthur v. Griswold, 55 N.Y. 401, 410; Oberlander v. Spiess, 45 id. 175; Wakeman v. Dalley, 51 id. 27; Lefler v. Field, 52 id. 621; Dubois v. Hermance, 56 id. 673; Brackett v. Griswold, 112 id. 454, 467.)
In Brackett v. Griswold ( supra, 467) the court say: "There is no doubt or question as to what elements are requisite to sustain an action for false pretenses. The essential constituents of such an action have been understood from the time such actions were first maintained. They are tersely stated by CHURCH, Ch. J., in Arthur v. Griswold ( supra), viz., `Representation, falsity, scienter, deception and injury.' There must have been a false representation, known to be such, made by the defendant, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery."
Judged by this rule the defendant's counterclaim cannot be sustained. It does not allege scienter on the part of appellant's grantor, or any intent to deceive, or a reliance on the representations by respondent in making the contract or accepting the deed. It does not even allege that the representations were made prior to the execution of the contract and it is doubtful whether it is sufficiently alleged that they were false. The allegation is that after defendant came into possession of the premises, which presumably was sometime subsequent to the execution of the contract, he "ascertained that said premises were not fully rented as represented and were not rented to reputable and responsible parties, but on the contrary to persons who were not financially responsible." Nor is it alleged that defendant did not know the real facts at the time. If the representations were made after the execution of the contract, they would not constitute any part of the consideration for the contract which defendant was then obligated to fulfill. It is not alleged that the premises were not fully occupied by reputable and responsible persons at the time of the making of the contract. The representations, if made at that time, could not be construed into a guaranty that the premises would be so occupied at the time of delivering possession to defendant. It is not alleged that any representation was made as to the tenure of the tenants; whether for a day, a week, a month or a year, or other term. The theory of the respondent is that the answer is sufficient to constitute a defense on the ground that the representations with reference to the tenants constituted part of the consideration and were fraudulently made. But, as has been seen, the allegations are insufficient to show that the defendant's signature to the agreement was induced by fraudulent representations. The written contract appears to be complete and provides for all the details of an exchange of real estate of the respective parties. It deals with the subject of tenants and provides for an apportionment of the rents. As we have seen, this part of the answer alleges that the exchange of properties was to be made pursuant to the written agreement therein quoted. The respondent cannot, under the guise of varying the consideration, engraft into the agreement by parol new terms and covenants. ( Engelhorn v. Reitlinger, 122 N.Y. 76; Eighmie v. Taylor, 98 id. 288; Seitz v. Brewers' Refrigerating Machine Co., 141 U.S. 510.)
It follows that plaintiff's demurrer was improperly overruled and the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to defendant to amend the answer within twenty days upon payment of the costs of demurrer and of this appeal.
O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs in this court and in the court below.