In re Benoit

Houghton, J. (dissenting):

While the complaint in the action in which judgment was .^obtained .against the petitioner prior to his bankruptcy, is very bad,. *147still all it really lacks to make it a good complaint in fraud is the allegation of reliance upon the false representations.

The making of the representations as to no advance rents having been collected on the lease and their falsity as to the tenant Rue are properly set forth. The written affidavit of defendant is appended to the complaint, from which knowledge of falsity can 1 e fairly inferred.

Facts are stated from which damages can be computed, to wit, loss of rent from April 1, 1904, at the rate of $3,300 per year. It is not fatal that the pleader called the damages resulting from the fraud which he particularly set forth an “indebtedness” or money “ due and owing.”

'The facts pleaded did not show any indebtedness in assumpsit or for money had and received. The assignment of the lease which is made a part of the complaint contains no covenant against receipt of advance rents, or that they had been collected only to a specified date. The action, therefore, was not based on any covenant in the assignment. In the absence of any agreement on the subject the assignor of the lease was not under obligation to repay to the assignees any advance rents which he had collected prior to his assignment.

The defendant did not, therefore, owe the' plaintiffs any sum of money either by implication of law or by agreement.

If he was liable to them at all under the facts alleged, he was liable because he had deceived them by his representations that he had not collected any advance rent from Rue.

No other inference than that the complaint, is based on fraud can be gathered from the allegations. It is true the defendant could have demurred and succeeded. But he answered, and admitted the representations contained in his affidavit and that he had taken arid discounted Rue’s note, but plead that the agreement with Rue had been abrogated to plaintiff’s knowledge. The omission of the allegation of reliance upori the representations was but a . technical defect, concerning which an amendment could have been allowed on the trial.

In the absence of any demurrer or motion on defendant’s part the complaint was good, enough, especially as he allowed judgment to go against him in open court when the case was' called for trial.

*148Although fraud is not expressly charged in a cqmplaint, if the facts showing it are pleaded, such omission is .not material after judgment. (Goldsmith v. Goldsmith, 145 N. Y. 313.) Technical objections to a pleading should be taken by demurrer or otherwise, and after judgment they will be disregarded even in an action for fraud. (Whittlesey v. Delaney, 73 N. Y. 571; Disbrow v. Harris, 122 id. 362.)

In my view the judgment was clearly based on fraud and hence wasjiot discharged by the bankruptcy proceedings. The appellant, therefore, was not entitled to have it discharged of record and. the order refusing so to .do. should be affirmed.

Scott, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.