In this action for fraud and deceit defendant moves for an order pursuant to rule 106 of the Buies of Oivil Practice dismissing the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
In a motion of this nature the allegations of fact stated in the complaint are assumed to be true. (Howard Stores Corp. v. Pope, 1 N Y 2d 110,114; Lock v. Pembroke, 280 N. Y. 430.) In determining whether a complaint is legally sufficient nothing but the pleading may be considered; affidavits are not permitted (Purdy v. McGarity, 262 App. Div. 623).
The complaint herein contains all the necessary allegations for an action in fraud and deceit. It sufficiently alleges facts and circumstances constituting the fraud. The essential elements of an action for damages for fraud are set forth: representation, falsity, scienter, deception and injury. In addition, the allegations of the complaint regarding the misrepresentations made by defendant are not promissory in nature but misrepresentations of defendant’s intention to comply with the promises made, so as to constitute a false statement of an existing material fact. *87which is a sufficient allegation in an action for fraud and deceit. (Adams v. Gillig, 199 N. Y. 314; 4 Carmody-Wait, New York Practice, p. 123.)
Accordingly defendant’s motion is denied.