Kley v. Healy

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 555,28 N.E. 593
• Parties: KLEY v. HEALY et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 555

28 N.E. 593

KLEY

v.HEALY et al.

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal from court of common pleas for the city and county of New York, general term.

Action by Anna C. Kley against John W. Healy, to cancel the satisfaction of a judgment upon the ground that it was obtained by fraud, and for other relief. Judgment of the court at special term dismissing the complaint was affirmed by the general term. Plaintiff appealed. Reversed.

Hector M. Hitchings, for appellant.

Christopher Fine, for respondent.

STATEMENT BY THE COURT. Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment entered upon the decision of said court at special term. Action to cancel the satisfaction of a judgment upon the ground that it was obtained by fraud, and for other relief. The facts appear in the opinion.

VANN, J.

Upon the trial of this action the complaint was dismissed ‘on the opening of the plaintiff's attorney, and on the ground that the complaint did not state facts sufficient to constitute a cause of action.’ The appeal book, however, does not disclose what was said in opening the case, but certain ‘offers to prove,’ made in behalf of the plaintiff, apparently as a safeguard against the motion to dismiss, are specifically set forth. It has recently been held by this court that ‘where a complaint is dismissed on the opening of counsel all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings.’ Clews v. Association, 105 N. Y. 398, 404, 11 N. E. Rep. 814. This court has further held that where, after the plaintiff has opened his case, the complaint is dismissed on the ground that it states no cause of action, it must be treated on appeal as if it had been demurred to, and that the sole question to be considered is whether it sufficiently states a cause of action. Sheridan v. Jackson, 72 N. Y. 170, 172. In the supreme court the practice has been laid down by the learned judges of the general term in the first department, as follows: ‘There is no finding of facts or conclusions of law in the court below. No part of the opening of counsel is given. The dismissal of the complaint must, therefore, be regarded as made upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because we must assume that the counsel in his opening stated substantially the same facts alleged in the complaint.’ Linde v. Bensel, 22 Hun, 601. The opening, in behalf of the plaintiff, is a brief statement of the nature of the action, the issues to be tried, and the facts that he expects to prove. Tisdale v. President, etc., 116 N. Y. 416, 419, 22 N. E. Rep. 700; Elwell v. Chamberlin, 31 N. Y. 611, 614;Ayrault v. Chamberlain, 33 Barb. 229, 233. As the proof must conform to the pleadings, it is reasonable to presume that when such statement is not set forth in the appeal book it follows the pleading under which it was made. It cannot be assumed, even to support a judgment on appeal, that the opening contained either a fatal admission, or anything inconsistent with the allegations of the complaint, as that would be opposed to its nature, and a departure from the usual practice. We think that where the opening of the plaintiff does not appear in the appeal book it should be presumed to comprise the substance of the complaint, and that any offer to prove made in connection with the opening, unless objected to as inadmissible under the pleadings, should also be regarded as a part thereof.

The substance of the complaint in question is that the plaintiff, having recovered a judgment against the defendant Healy that was a lien upon certain lands belonging to him, was induced to satisfy the same and countermand an execution issued thereon, by the false and fraudulent representations, made to her by said Healy with intent to deceive, that he was a member of a certain mercantile firm carrying on business in the city of New York, and had a lucrative interest therein that would soon enable him to pay said judgment; and that, if the recovery of said judgment became known to his copartners, they would dissolve the firm, eject him from the business, and entail upon him financial ruin. She further alleged that, being misled by such misrepresentations, she ‘consented to comply with his request upon condition that he would pay her attorney his fees in said action, which he did;’ and that, ‘relying upon the truth of said representations, and trusting to his promises to pay said judgment’ she gave him ‘a general release and satisfaction’ of the same ‘without receiving any consideration therefor, whatsoever;’ that Healy failed to pay, and had no property except his interest in said premises. She demanded that the release and satisfaction be canceled, and the judgment restored as a...