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Kelly v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 28, 1950
276 App. Div. 540 (N.Y. App. Div. 1950)

Opinion

March 28, 1950.

Appeal from Supreme Court, New York County, BOTEIN, J.

Edward F.X. Ryan for respondent.

B. Hoffman Miller of counsel ( Nathaniel Phillips, attorney), for appellant.


It is not clear from the complaint whether a single cause of action for fraud is intended to be stated or whether there is a claim for fraud in inducing plaintiff to discontinue his action for false arrest in 1937, in addition to the claim of fraud in connection with plaintiff's dismissal from his position in the department of markets in 1934. Viewed from either standpoint, the complaint should be dismissed on the motion made under subdivision 6 of rule 107 of the Rules of Civil Practice, on the ground that the cause of action did not accrue within the time limited by law for the commencement of the action. This is upon the assumption that a cause of action in fraud, within the scope of subdivision 5 of section 48 of the Civil Practice Act, on account of plaintiff's dismissal from the service is stated. There is sufficient doubt of that, however, as the elements of representation and reliance of a common-law action of deceit seem to be lacking, that we do not pass upon the sufficiency of the complaint.

Any cause of action based on inducing plaintiff to discontinue his action for false arrest in 1937 is certainly barred by the six-year Statute of Limitations as the complaint reveals on its face that the alleged falsity in the inducement, namely the unkept promise to have plaintiff reinstated to his position, became apparent and the promise was broken shortly afterward. Plaintiff could not claim, and we do not understand him to claim, that he did not learn of the facts constituting this aspect of the alleged fraud until 1945.

That leaves for consideration plaintiff's claim that he did not discover the facts constituting the fraud in connection with his dismissal from the service in 1934, until 1945. It is made clear by documentary evidence, however, that by June 16, 1934, when plaintiff instituted a proceeding to be restored to his position, he asserted the claim, and purported to have the knowledge, that his dismissal from the service was not made in good faith but was based solely upon a predetermined purpose to dismiss him from the service on false charges. While some of the details of the fraud as now asserted were not, according to plaintiff's present claim, discovered until 1945, what this court said in Ectore Realty Co. v. Manufacturers Trust Co. ( 250 App. Div. 314, 318) is applicable — "when facts are known from which the inference of fraud flows, there is a discovery of the facts constituting the fraud within the terms of the statute". The opinion in that case also quoted apposite language from the decision in Sielcken-Schwarz v. American Factors, Ltd. ( 265 N.Y. 239, 245) that "A new cause of action for fraud does not accrue each time a plaintiff discovers new elements of fraud in a transaction or new evidence to prove such fraud".

Plaintiff was placed upon such inquiry by what he admittedly and assertedly knew in 1934, to be then charged with the additional knowledge which he claims he did not learn until 1945. Or, to put it another way, having knowledge, as he asserted, of the fraud claimed at that time, he was not entitled to wait for a period beyond the period of limitations to improve the claim or to institute suit.

The order appealed from should be reversed, with $20 costs and disbursements and the complaint dismissed, with costs.


The learned Justice at Special Term properly held that on these motions it was not for the court to resolve the probability or plausibility of the allegations, but determination should await trial. He also properly held that the complaint sufficiently sets forth a misrepresentation by suppression of facts and deception, on which the plaintiff clearly relied, to support a cause of action for formal fraud and deceit. There is a clear distinction between: (1) that which is false; i.e., erroneous though it may be in good faith; and (2) that which is formally fraudulent; i.e., necessarily grounded on malice and deceit.

Accordingly, I dissent and vote to affirm.

PECK, P.J., VAN VOORHIS and SHIENTAG, JJ., concur in Per Curiam opinion; DORE, J., dissents and votes to affirm in opinion in which COHN, J., concurs.

Order reversed, with $20 costs and disbursements to the appellant and the complaint dismissed, with costs, and judgment is directed to be entered dismissing the complaint herein, with costs.


Summaries of

Kelly v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 28, 1950
276 App. Div. 540 (N.Y. App. Div. 1950)
Case details for

Kelly v. City of New York

Case Details

Full title:JOHN M. KELLY, Respondent, v. CITY OF NEW YORK et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 28, 1950

Citations

276 App. Div. 540 (N.Y. App. Div. 1950)
96 N.Y.S.2d 156

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