(dissenting). While a good deal of the criticism leveled at the complaint is justified, yet it seems to me there is a sufficient allegation of fact to prevent a dismissal of the complaint. In the 4th paragraph the plaintiff alleges:
“ That the individual defendants did further represent to the plaintiff that the said corporation had assets of a value of more than Thirty Thousand ($30,000) Dollars and that its total liabilities, exclusive of the Capital stock issued and outstanding were less than Ten Thousand ($10,000) Dollars.”
And in the 6th paragraph the plaintiff alleges:
“ Sixth. That in truth and in fact the representations made by the defendants were false and were known by the said individual defendants to be false when made, and were made for the purpose of inducing the plaintiff to rely upon the said representations and to believe in the truth thereof, and to purchase the said shares of stock in reliance thereon; that the plaintiff did rely upon the truth of the said statements and representations and was thereby induced to make such investment.”
*152Clearly the above allegations are allegations of fact. The words of Judge His cock, now Chief Judge, in Eppley v. Kennedy (198 N. Y. 348, 351) are directly in point: “ The allegations to the effect that plaintiff represented that $25,000 had been expended upon the properties to be sold to the defendant and that this representation was false, were allegations of fact.”
I, therefore, am compelled to dissent and to vote to affirm.
Merrell, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.