Thomas H. Unckles, Appellant, v. Henry Hentz, Respondent, Impleaded with Others

Thomas H. Unckles, Appellant, v. Henry Hentz, Respondent, Impleaded with Others. False pretenses—elements, of the action — scienter—an order sustaining a demurrer is not cuppealable. "Wiere a complaint contains no other allegation of a wrongful act upon the part of the defendants, except that they jointly and severally “ pretended and represented themselves ” to he something that they were not, the action is essentially one to recover damages for false and fraudulent representations, and where the complaint contains no allegation of scienter, it is insufficient and" is demurrable. An order sustaining a demurrer and directing judgment thereon, is not appealable. Appeal by the plaintiff, Thomas H. Unekles, from a final judgment of the Supreme Court in favor of the defendant Henry Hentz, entered in the office of the clerk of the county of Hew York on the 24th day of February, 1897, upon the decision of the court rendered after a trial at the Hew York Special Term sustaining said defendant’s demurrer to the complaint, and also from an order of the Supreme Court made at the Hew York Special Term and entered in the office" of the clerk of the county of Hew York on the. 27th day of January, 1897, sustaining said defendant’s demurrer. Anthony B. Porter, for the appellant. Charles W. Pierson and William C. Gulliver, for the. respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The appellant seems to concede that upon the allegations of the complaint this action cannot be maintained as one to recover damages for a fraud committed by the- defendants, by which the plaintiff was injured. The appellant commences his brief with the statement that this is not an action for fraud. It seems scarcely necessary to examine the complaint to show that allegations necessary to sustain an action to recover damages for a fraud are wanting in the complaint. • There is, however, no scienter. "It is not alleged that the defendants knew that any representations that they made were false and untrue or that they were made with an intent to deceive the plaintiff or others: Hor is it alleged that what the plaintiff calls “ jiretentions and representations ” were made by the defendants for the purpose of being communicated to the plaintiff or to any other person, or with the knowledge that the pretensions or representations were false or that they were intended to deceive. The appellant, however, claims that a right of action exists to recover the amount that this plaintiff paid for these shares, or whatever they may be called, without alleging any fraud against these defendants. As he states, it was not the intention of the pleader to charge fraud in the complaint, but to stand on the acts, per se, of respondents-anti others as constituting the cause of action. 1 am at a loss to-understand just what is meant by this statement. To entitle the-plaintiff to recover he must allege facts from which .the inference-follows that the damage alleged to have been sustained by him was caused by some act of the defendants, and that such act ■ was wrongful. We assume that the defendants are responsible for their acts, and that any illegal act of theirs which caused the plaintiff damage would sustain an action by the plaintiff against the defendants to-recover such damage; but it is too well settled to require the citation of authority that where one relies upon a ■ statement or representation of a party as a ground for an action for damages against him, he must allege and prove not only that such statements or representations were made- and that the plaintiff acted upon them and was injured by them, but that the persons sought to., be held liable made such representations knowing them to be false and with an intent to deceive. The essential elements of an action for false pretenses are representations, falsity, scienter, deception and injury (Hotchkin v. T. N. Bank, 127 N. Y. 337) and the Ooiirt of Appeals has expressly held that an action founded upon the deceit and fraud of the defendant cannot be maintained in the absence of proof that he believed or had reason to believe at the time when he made them that the representations made by him were false, and that they were for that reason fraudulently made. (Meyer v. Amidon, 15 N. Y. 170.) See, also, Brackett v. Griswold (112 id. 167) where the court say: “ 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.” Here the only allegation of a wrongful act of the defendants is that the defendants jointly and severally “ pretended and represented themselves” to be something that they were not. It is thus essentially an action to recover thé damages caused to the plaintiff by reason of false and fraudulent representations made by the defendants, and the authorities áre uniform in holding that to sustain such a cause of action scienter must be alleged and proved. The judgment appealed from is, therefore, affirmed, with costs. The plaintiff appears to have appealed not only from the judgment, but also from the order sustaining the demurrer and directing the judgment. As such an order is not appealable, that appeal must be dismissed. Van Brunt, P. J., Rumsey, Williams and O’Brien, JJ., concurred. Judgment affirmed, with costs. Appeal 'from order dismissed. Sic.