The theory of the plaintiff is that the action is for fraud and. deceit, in making false representations upon the sale of the mare, and of the defendant, that the complaint sets forth a cause of action for breach of warranty upon such sale.
It is true that the allegations in the complaint, that “ the statements of the said defendant concerning said horse, upon which the plaintiff relied in making the purchase, were wholly, wilfully false and untrue, and were known to be false and untrue by said defendant at the time they were made,” were appropriate only to an action for fraud and deceit, yet these allegations may be eliminated from the complaint and sufficient remain for a good complaint in an action upon contract, namely, for breach of a warranty in the sale of the mare. The action cannot be regarded as one solely founded upon a tort. Indeed, it appears to have been tried as one for breach of warranty, and no question: of fraud was submitted to the jury and it was competent upon a motion like this for the defendant to show the theory upon which the action wag tried and decided. (Neftel v. Lightstone, 77 N. Y. 96.)
If the action had been founded upon a tort solely the plaintiff could not have succeeded upon the trial, for he failed to show that the defendant knew, or had reason to know, that the statements and representations made by him concerning the mare were false, or that he assumed or intended to convey the impression that he had actual knowledge of their truth although conscious that he had no such knowledge. So that if the case had been tried as one for tort the complaint should have been dismissed for failure of proof. (Code Civ. Proc. § 549, subd. 4; Meyer v. Amidon, 45 N. Y. 169; Wakeman v. Dalley, 51 id. 27; Indianapolis, P. & C. R. R. Co. v. Tyng, 2 Hun, 311; affd., 63 N. Y. 653.)
Where, as here, a complaint contains a statement of facts consti*287tuting a cause of action upon a contract, which is sustained by proof, a recovery is nevertheless authorized under the authorities although the complaint also contains allegations of a tort. In such a case the latter are regarded as surplusage. (Fowler v. Abrams, 3 E. D. Smith, 1; Town of Green Island v. Williams, 79 App. Div. 260 ; Dodge v. Eckert, 71 Hun, 257; Cohn v. Beckhardt, 63 id. 333; 44 N. Y. St. Repr. 544; Conaughty v. Nichols, 42 N. Y. 83.)
The execution against the person was, therefore, improperly issued, and the order setting it aside should be affirmed, with ten dollars costs and disbursements.
All concurred, except Parker, P. J., dissenting.
Order affirmed, with ten dollars costs and disbursements.