Shields v. Clement

Superior Court of New York

Shields v. Clement

33 N.Y.S. 676, 12 Misc. 506

CourtThe Superior Court of the City of New York and Buffalo

DecidedMay 15, 1895

StatusPublished

This text of 33 N.Y.S. 676 (Shields v. Clement) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shields v. Clement, 33 N.Y.S. 676, 12 Misc. 506 (superctny 1895).

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Opinion

WHITE, J.

The only ground upon which a reversal of the judgment appealed from is asked is that the complaint does not allege that in the transaction between the parties the defendant intended to cheat and defraud the plaintiff. It is well settled that, in order to justify a recovery for damage alleged to have been sustained as a consequence of false and fraudulent representations, the intent to defraud must be alleged as well as proved. Steamship Co. v. Mitchell, 1 Abb. Pr. (N. S.) 396; Cullen v. Hernz, 13 N. Y. St. Rep. 333; Marsh v. Falker, 40 N. Y. 565. When, as in this case, no complaint is served- with the summons, the relief granted the plaintiff by default should be limited by his allegations as well as by his proofs. Code, § 1207; Stevens v. Mayor, 84 N. Y. 296; Weatherby v. Wood, 29 How. 404; Beach v. Cooke, 28 N. Y. 508; Graham v. Read, 57 N. Y. 681; Evans v. Burton, 42 Hun, 652. The intent to defraud being an essential element in the plaintiff’s case, it was necessary to allege as well as to prove it. Ho intent to defraud having been alleged in the complaint, the court below was not authorized to find any. Therefore, as the judgment establishes an intent to defraud, it is not warranted by the complaint, and should be set aside, and a new trial granted'. All concur.

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WHITE, J.

The only ground upon which a reversal of the judgment appealed from is asked is that the complaint does not allege that in the transaction between the parties the defendant intended to cheat and defraud the plaintiff. It is well settled that, in order to justify a recovery for damage alleged to have been sustained as a consequence of false and fraudulent representations, the intent to defraud must be alleged as well as proved. Steamship Co. v. Mitchell, 1 Abb. Pr. (N. S.) 396; Cullen v. Hernz, 13 N. Y. St. Rep. 333; Marsh v. Falker, 40 N. Y. 565. When, as in this case, no complaint is served- with the summons, the relief granted the plaintiff by default should be limited by his allegations as well as by his proofs. Code, § 1207; Stevens v. Mayor, 84 N. Y. 296; Weatherby v. Wood, 29 How. 404; Beach v. Cooke, 28 N. Y. 508; Graham v. Read, 57 N. Y. 681; Evans v. Burton, 42 Hun, 652. The intent to defraud being an essential element in the plaintiff’s case, it was necessary to allege as well as to prove it. Ho intent to defraud having been alleged in the complaint, the court below was not authorized to find any. Therefore, as the judgment establishes an intent to defraud, it is not warranted by the complaint, and should be set aside, and a new trial granted'. All concur.

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Bluebook (online)

33 N.Y.S. 676, 12 Misc. 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-clement-superctny-1895.

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