The representations made by the defendant were so minute, in relation to the mortgage and the land upon which it was a lien, as to clearly imply a knowledge by him of the facts stated, and, as it is conceded they were false, a fraud was committed.
The allegation in the plaintiff’s affidavit is that they were false and fraudulent, and made to induce the plaintiff to make the exchange, which was accomplished by them. It is enough to cast upon a defendant the burden of misrepresentations, if it appear that he intended to convey the impression that he had actual knowledge of their truth when conscious that he had no such knowledge. If the defendant, in other words, knew the statements he made to be false, or he intended to convey the impression that he had actual knowledge of their truth, when conscious that he had not, and they are in fact false, he committed a fraud upon the plaintiff. The result is the same. The plaintiff is equally injured by the one or the other. The assumption of knowledge depends much upon, and is indicated by, the form of the representation. If it be affirmative in character, positive and unequivocal, -without condition or qualification, as contradistinguished from information and belief, or resting in opinion, it must be regarded as designed to convey actual knowledge of its truth. The representations proved in this case are positive, unconditional and unequivocal. Eor example, that the mortgagor’s title was perfect; that the land was good and productive; that one-half was in a high state of cultivation ; that there was a habitable building thereon, etc. There is no belief expressed by the defendant in the existence of these things ■ — ■ no supposition, no statement on information or opinion. They are as already stated affirmative, positive. They were made for the purpose of inducing the plaintiff to make the exchange which was accomplished by them. The plaintiff does not state, it is true, that she was induced by them to part with her property, but she did transfer it after the representations which were made, as she alleges, to induce her to do so. If the defendant knew the *346statements to be false, be is guilty of misrepresentation. If be assumed to know wlrat he did not know, and by that device induced the plaintiff to part with her property, be was equally guilty. In this case, the defendant, at least, assnmed to know what be did not know, viz., that what be stated was true, and be did it to induce the plaintiff to make the exchange which resulted from their negotiations. This is apparent from the allegations in the affidavit of the plaintiff, and is a conclusion drawn not by the plaintiff but by the j udge therefrom. He finds the fact. In such a case, an order of arrest is a remedy to which a plaintiff is entitled. (Bennett v. Judson, 21 N. Y., 240; Marsh v. Falker, 40 id., 562; Meyer v. Amidon, 45 id., 169; Oberlander v. Spiess, id., 175.)
The order should, for these reasons, be affirmed, with ten dollars costs, and disbursements of this appeal.
Davis, P. J., and DaNiels, J., concurred.Order affirmed, with ten dollars costs and disbursements.