Elbs v. Shulman

The matter stricken from the answer is sufficient on a motion to dismiss to constitute a counterclaim for damages for fraud. Although the matter is called a defense, we think it apparent that it is intended as a counterclaim completely to defeat the plaintiff’s claims. A misrepresentation of existing fact is found in the statement that the plaintiff “ had a tenant who was about to open a restaurant in September.” This was an allegation of an existing lease for restaurant purposes. Falsity and scienter are directly alleged. Intent and reliance are implicit in the allegation that the “ plaintiff by false representations induced this defendant ” to rent the premises, and damages are broadly, if some*788what indefinitely, set out. All concur, except Crouch, J., who dissents and votes for affirmance. Present ■—• Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ. Judgment of County Court and judgment of City Court reversed on the law, and action remitted to the City Court for trial, with costs in all courts to the appellant to abide the event.