If the complaint in this action is in tort, the court below ruled correctly. (Walter v. Bennett, 16 N. Y., 250; Degraw v. Elmore, 50 id., 1.) It is established by authority, that when fraud is the basis of the complaint, there can be no recovery as for a breach of contract. Whatever doubt was thrown upon this proposition by the case of Conaughty v. Nichols (42 N. Y., 83), was removed by the case of Ross v. Mather (51 N. Y., 108). In the case of Ledwich v. McKim (53 N. Y., 308), which was an action to recover back the purchase-money of certain bonds, on the ground of failure of title, it is said that the presence of an averment of false representations would not make the action one ex delicto, the summons being for money. From the case, it is evident that the basis of the action was the breach of an implied warranty of title, and as it does not in terms, I shall assume it does not in fact, interfere with the proposition laid down in Ross v. Mather. The latter was an action to recover damages on the sale of a horse. . The summons was for relief. The complaint alleged the sale; that on the sale the defendant warranted, and falsely and fraudulently represented, certain things as to the animal; that the plaintiff, relying on the warranty and representations, and believing them true, purchased the horse; that the defendant knew their falsity; that, by means of the premises, the defendant falsely and fraudulently deceived him, to his damage. The court, while admitting that the complaint contained all that was necessary to authorize a recovery upon contract, held that the gravamen of the action was fraud. This case is approved in Dudley v. Scranton (57 N. Y., 428).
In the present case the summons is for relief, thereby, as is said in *550Elwood v. Gardner (45 N. Y., 349), by Church, Ch. J. (p. 354), showing an intention not to commence an action upon the note.* The complaint alleges that the defendant, with intent to deceive and defraud the plaintiff, by inducing him to take his note for $132, money lent and advanced defendant by plaintiff, falsely and fraudulently represented he owned certain property, stating it; that plaintiff, relying on and believing these representations, was induced to and did take the note of defendant (describing it), and sets out the consideration, and that it is not paid; that the representations were false, and so known to defendant, and were made with intent to deceive and defraud plaintiff; that by reason of the premises, plaintiff demands judgment for $132 and interest.
It is clear to me that this complaint is framed so much like the one in Ross v. Mather, that the ruling in that case is in point here. Besides, the basis of the action was clearly in fraud, and so understood by the pleader, and by all parties, to the close of the trial. The allegations of fraud are the prominent and leading ones, and' would naturally lead the defendant to treat it as an action for the fraud. Those were the sole issues tried. The plaintiff having chosen his ground, and the defendant having there met and beaten him, the plaintiff should not now be permitted to change his base. Pleadings are to be construed most strongly against the pleader. If the facts constituting a cause of arrest are not the same as those constituting the cause of action, they should not appear in the complaint. (1 Moak PI. [3d ed.], 250, and cases cited.) If such facts are in the complaint, the pleader cannot find fault if we assume such facts are correctly pleaded there, as constituting his cause of action. It does not follow that the verdict here is in any way a bar to an action on the note.
The general objection taken by plaintiff to defendant’s proving the consideration of the note, is not available to plaintiff here. That subject had been gone into by plaintiff, and the defendant had a right to rebut it.
Judgment should be affirmed.
Present —Smith, P. J., Gilbbbt and MisbwiN, JJ.Smith, P. J., dissented.
Judgment affirmed.
See Graves v. Waite, 59 N. Y., 156. — [Rep.