William R. Day

“ But, as appears in the opinion of the New York court of appeals (158 N. Y. 466-468, 53 N. E. 211) , when the demand for a jury trial was made the defendants had not set up their inability to perform the contract, but had taken issue upon the allegations of fraud and misrepresentation. In this attitude of the case it was held that a jury trial was properly denied.
But it is unnecessary to further consider questions of practice peculiar to the jurisdiction where the judgment was rendered. Whether the complaint sufficiently charged fraud to warrant the judgment given is not a Federal question. ”

“ Such allegations have frequently been held the equivalent of averments of specific intent. Indeed, it is difficult to perceive how a statement falsely and fraudulently made can be otherwise than intended to deceive. A statement fraudulently made, with knowledge of its falsity, must necessarily be intended to deceive. Bank of Montreal v. Thayer, 2 McCrary, 1, 7 Fed. 625, and cases cited in the opinion. It is argued that Bullis, one of the defendants, regarding the case as one for fraud, demanded a jury trial, which was denied him, and that this shows the character of the case. ”

“ Under these allegations and proofs the New York courts have seen fit to render a money judgment, not for specific performance, as upon contract, but for the frauds charged against the defendants.
As was said of the action and the relief granted, in the opinion of the appellate division (68 App. Div. 508, 73 N. Y. Supp. 1047, affirmed in 171 N. Y. 689, 64 N. E. 1119) : 'The action for specific performance, in the strictest sense thereof, was founded upon the actual, positive fraud of the defendants Bullis and Barse. ”