(concurring.) In the complaint it is stated that the defendants “falsely and fraudulently represented said horse to be sound, kind, true, and gentle and quiet in harness. * * * Plaintiff further alleges that, at the time of said warranty, representations, and sale, the said horse was unsound, unkind, and untrue, restive and ungovernable to drive, and had a vicious habit of kicking, and was actually worthless, and was of no value whatever to plaintiff, all of which was well known to the defendants at the time of said sale. ”
The learned counsel for the respondent correctly characterizes the complaint when he says in his printed points, viz.: “ The complaint states a cause of action in fraud and tort.” Inasmuch as the complaint contained a cause of action of fraud and deceit, the plaintiff at the trial was required to prove-such fraud and deceit as he had alleged in his complaint. In establishing such a complaint as the one from which we have just quoted, the plaintiff was called upon to give satisfactory proof of a scienter. The plaintiff was-not at liberty, under the complaint, to rely for the right of recovery upon a simple warranty. Having elected to charge the defendants with a fraud, and framed a complaint for that purpose, he was bound to establish the fraud’ as the basis of a recovery. We may appropriately apply the language used by Danforth, J., in Neudecker v. Kohlberg, 81 N. Y. 301, where he says, viz.: “The principle still remains that the judgment to be rendered by any court, must be secundum allegata et probata. Wright v. Delafield, 25 N. Y. 266; Tooker v. Arnoux, 76 N. Y. 397.” In the case from which we have just quoted it was distinctly held, viz.: “Where a complaint states a cause of action ex delicto, it was not competent at the trial to convert it into one ex contractu. ”
For the reasons stated in the opinion of Brother Merwin, showing-that the allegations of fraud contained in the complaint were not satisfactorily established at the trial, I agree with him in his conclusion that the-judgment of the county court and of the justice’s court should be reversed. It may be that the plaintiff, under a proper complaint, with the proofs which-*78he has given in the case before us, may be able to make out a right of recovery upon a warranty; however, we may not pass upon that question. Upon the ground already stated I agree to a reversal.