Angela M. Gallagher, Appellant, v. Eagle Savings and Loan Company, Respondent

Angela M. Gallagher, Appellant, v. Eagle Savings and Loan Company, Respondent. [MAJORITY] Judgment dismissing the first cause of action affirmed, with costs. Mills and Blackmar, JJ., concurred on the ground that the allegations of fraud are promissory in their nature and insufficient, and not statements as to any existing fact. Putnam, Kelly and Jaycox, JJ., concurred on the ground that the allegations of paragraphs III and VII do not show that all or indeed any part of plaintiff’s deposits were made before the discovery of the alleged fraud; in paragraph III plaintiff sets forth her deposits and withdrawals, which deposits and withdrawals continued until January 1, 1915, when her deposits exceeded her withdrawals by $296.55; she discovered the falsity of defendant’s representations in 1914 (paragraph VII), and the complaint does not show that she did not deposit the total amount now due after she possessed that knowledge; deposits or payments made after she knew the true facts cannot be recovered in this action; in the absence of averment that the moneys now due or some of them were paid to defendant before she obtained knowledge of the true facts, the complaint does not state a cause of action.