and 143 New York State Reporter Argued before GILDERSLEEVE, P. J., and BISCHOFF and MacLEAN, JJ. Bertrand L. Pettigrew, for appellant. Rogers & Rogers (Saul E. Rogers, of counsel), for respondent. BISCHOFF, J. The action proceeded in form as one to recover damages for physical injuries sustained by the plaintiff in consequence of the defendant's agent's willful misrepresentation and deceit, and resulted in a judgment for the plaintiff in a substantial amount. The plaintiff was a monthly tenant of certain rooms in the defendant's premises. After the recommencement of the term, and before its expiration, on the occasion of the defendant's agent's call for the rent, the plaintiff directed the agent's attention to the decrepit and threatening condition of the ceiling in one of the rooms, expressing her apprehension of injury therefrom and her intention to vacate the rooms. She was assured by the agent that he had caused the ceiling to be examined and tested, and that it had been found to be secure. Later, during the same term, the ceiling fell upon the plaintiff, who, relying upon these assurances, had remained in the occupancy of the rooms, causing physical injuries to her. Upon the trial it appeared from sufficient proof that the ceiling had not been inspected or tested, and the agent's representations that it had were knowingly untrue as a matter of fact, and so the court below found. An action for damages for fraud and deceit does not necessarily rest in any actual or contemplated contractual relation of the parties, and depends "upon the fact that an injury has been suffered, resulting in damages to the party seeking redress, and that such damages are the legitimate consequence of the fraud." N. Y. Land Imp. Co. v. Chapman, 118 N. Y. 288, 294, 23 N. E. 187, 189. For illustration, reference may be had to the ordinary case where one person is induced to enter into contractual relations with another through the deceit of a third. It is not necessary that the person guilty of the fraud has derived some advantage therefrom. It suffices that the person deceived has suffered a detriment which has resulted in a loss. Allaire v. Whitney, 1 Hill, 484; Northrop v. Hill, 57 N. Y. 351, 15 Am. Rep. 501; Harlow v. La Brum, 151 N. Y. 278, 45 N. E. 859. Here the plaintiff was induced by means of the misrepresentations to refrain from herself repairing the ceiling, vacating the rooms, or otherwise providing for her protection, in either of which events she would have been secure from injury. All manner of fraud is abhorrent to the law, and if one person sustains injury through the fraud of another he will be afforded a proper remedy. Fiero on Torts, 44, citing 1 Com. Dig. 178, "Action on the Case"; Cro. Jac. 193; Cro. Eliz. 701; 1 Com. Dig. 222; Yates v. Joyce, 11 Johns, 136, 140. See, also, Gardner v. Heartt, 3 Denio, 232, 235. As was said by the court in Van Pelt v. McGraw, 4 N. Y. 110, 111: "It forms no objection to this action that the circumstances of the case are novel, and that no case precisely similar in all respects has previously arisen. The action is based upon very general principles, and is designed to offer relief in all cases where one man is injured by the wrongful act of another. where no other remedy is provided. This injury may result from some breach of positive law, or some violation of a right or duty growing out of the relations existing between the parties." True, the plaintiff's injuries were not the immediate result of the defendant's agent's deceit, but of an intervening cause, the fall of the ceiling. They were, however, the indirect result of the deceit, a natural and probable effect of the agent's wrongful conduct, one against which the fraudulent assurances were made, and from which the plaintiff expected to escape in her reliance upon such assurances. Her damages, therefore, were proximate, though only consequential to the fraud. Hale on Damages, 39. From the testimony of the defendant's witness Harris it appears abundantly that the latter was the agent and alter ego of the defendant in respect to the premises wherein the plaintiff's rooms were located; and, the agent's representations having been made within the scope of his duties, the defendant's answerability therefor is not debatable. Am. & Eng. Ency. of Law (2d Ed.) 1158; Sandford v. Handy, 23 Wend. 263; Weed v. Panama R. R. Co., 17 N. Y. 362, 72 Am. Dec. 474; Smith v. Tracy, 36 N. Y. 79, 83; Nowack v. Metropolitan St. Ry. Co., 166 N. Y. 433, 60 N. E. 32, 54 L. R. A. 592, 82 Am. St. Rep. 691. The judgment should be affirmed, with costs. GILDERSLEEVE, P. J., concurs. MacLEAN, J. (dissenting). In O'Brien v. Capwell, 59 Barb. 497, 504, says the court: "As between landlord and tenant, I think the law is well settled, when there is no fraud or false representations or deceit, and in the absence of an express warranty or covenant to repair, that there is no implied covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use." Neither an express warranty nor covenant to repair appears herein but the plaintiff bases her claim for an injury on November 20, 1906, from the fall of a ceiling in premises she leased from the defendant, upon alleged false representations made to her by the agent of the defendant after she had become a monthly tenant, so becoming and continuing from August 1, 1906, to January 1, 1907. The plaintiff testified she told the defendant's agent, on or about September 1, 1906, that she was afraid the kitchen ceiling would fall, and that he said it was all right and had been up there for a century; that two months later she told the same agent the cracks in the ceiling had become larger and bulged somewhat, but he said he had and the landlord had had the ceiling tested, and that it was all right and perfectly safe. Upon her cross-examination she testified that what the agent said to her did not seem true, that tne ceiling looked as though it would fall, that she spoke to the painter who painted it for the landlord about its appearance, tha the ceiling was in worse shape the second conversation than it was before, that it had lots of cracks in it, and that it was sagging down over the tub. 109 N.Y.S.-2 and 143 New York State Reporter Neither claiming nor showing representations or concealments prior to her hiring and entering into the possession of the premises, the representations claimed to have been made and claimed to have been relied on to her damage, to be actionable, must be so because in reliance thereon she continued her tenancy. In order, however, to recover therefor, she must prove representation, falsity, scienter, deception, and injury. The absence of any of them is fatal to a recovery. Brackett v. Griswold, 112 N. Y. 454, 467, 20 N. E. 376. It does not appear anywhere that a test had not been made. If it be urged that the testimony of the plaintiff that no one in her presence or to her knowledge called to examine the ceiling from August 1, 1906, to January 1, 1907, proves anything, it equally proves her knowledge of its falsity, and so no deception at the time the representation was made. If the assurance by the agent, who denied it, of the safe condition of the ceiling, be treated as the representation of a fact, her own testimony that the ceiling looked as though it would fall, and that the representations of the agent did not seem true, likewise proves her knowledge and disproves her deception. As the condition of that ceiling was equally apparent to both parties herein, and the assurance of safety was apparently not an obligation of the defendant, and so not peculiarly within his knowledge "the general rule is that if the facts represented are not matters peculiarly within the party's knowledge, and the other party has the means available to him of knowing by the exercise of ordinary intelligence the truth or the real quantity of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations." Schumaker v. Mather, 133 N. Y. 590, 596, 30 N. E. 755. Therefore, and, further, because evidence, sought on cross-examination, tending to show equality of the knowledge of the plaintiff and of the defendant's agent with respect to the condition of the ceiling, was improperly excluded on the objection of its incompetency, irrelevancy, and immateriality, the judgment herein in favor of the plaintiff should be reversed, and the case remanded for a new trial. WALL ST. EXCH. BLDG. ASS'N v. NEW YORK & W. CONSOL. OIL CO. (Supreme Court, Appellate Term. March 5, 1908.) CORPORATIONS-AUTHORITY OF OFFICERS AND AGENTS-RIGHTS OF PERSONS DEALING WITH AGENTS. While the defense of ultra vires cannot prevail as against the apparent obligation of a contract entered into by a corporation's executive officers and relating to a subject connected with the ordinary prosecution of the corporate business, yet a person who deals with the agents of a corporation, and accepts their assertion of authority while having ground to believe that they have none, takes the risk which would attend the failure of authority. [Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1720-1723.] MacLean, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Wall Street Exchange Building Association against the New York & Western Consolidated Oil Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered. Argued before GILDERSLEEVE, P. J., and BISCHOFF and MacLEAN, JJ. Frost & Nieman, for appellant. Alfred E. Ommen, for respondent. BISCHOFF, J. The defendant corporation should have been permitted to prove the fact that at the time of the execution of the lease the plaintiff was informed that the premises were not to be used by this corporation, but by another and distinct concern. While, undoubtedly, the defense of ultra vires could not prevail as against the apparent obligation of a contract entered into by its executive officers and relating to a subject connected with the ordinary prosecution of the corporate business (Hall v. Herter Bros., 90 Hun, 280, 35 N. Y. Supp. 769), a party who deals with the agents of the corporation, and accepts their assertion of authority, while having ground to believe that they have none, necessarily takes the risk which would attend the failure of authority. The ruling of the justice, that the written contract could not be affected by oral statements made at the time of its execution, proceeded upon the theory that the writing was the defendant's contract a fact, however, which depended upon such proof as the parties might offer upon the question of agency in the individuals who executed it. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. GILDERSLEEVE, P. J., concurs. MacLEAN, J. (dissenting). On June 25, 1906, the plaintiff and the defendant, as lessor and lessee, respectively, executed a writing, containing personal covenants, for the lease of certain premises, to commence July 1, 1906, and to end April 30, 1908. This writing, not sealed, was subscribed with the names of the parties herein and therein; the former "by" its secretary, and the latter "by" its secretary and treasurer. In this action to recover rent for the months of May, June, July, August, and September, 1907, the trial justice rendered judgment in favor of the plaintiff, and properly so, because, notwithstanding the testimony of the officer of the defendant, who subscribed defendant's name to the before-mentioned writing, thereby impliedly warranting his authority to do, that he had no authority so to do, the evidence was sufficient to support a ratification of his act by the defendant; the fact being undisputed and uncontradicted that the defendant paid the rent for the premises up to January 1, 1907. The fact of entrance into possession was quite immaterial, except as ratification, and, in view of other evidence, quite unnecessary. That the plaintiff, on the defendant's later request, "for convenience in and 143 New York State Reporter bookkeeping," addressed bills for rent to the "N. Y. & Cobalt Mfg. Co.," may in no wise alter the liability of the defendant upon the writing on which this action is based; nor may parol evidence be introduced for the purpose of showing that before or at the time of the signing of the writing the agreement was made for another company and that the plaintiff knew it to be the fact. "There is no doubt that, where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principals; and this, whether the agreement be or be not required to be in writing by the statute of frauds. But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done." Higgins v. Senior, 8 Meeson & Welsby, 834, 843, a case cited with approval in Briggs v. Partridge, 64 N. Y. 357, 362, 21 Am. Rep. 617. The judgment should therefore be affirmed, with costs. * * KAPLAN v. SHER. (Supreme Court, Appellate Term. February 24, 1908.) PLEADING-BILL OF PARTICULARS-INJURIES TO SERVANT. A complaint alleged that defendant put plaintiff to work at or near a machine without instructing him as to the manner of operating it, and without warning him of the dangers, and that on a specified day, while he was "working at or near one of said machines, he was seriously injured" by a portion of his thumb being cut off; that said injury was caused by reason of a defect in the condition and the ways, works, or machinery connected or used in the business of defendant. Held, that defendant is entitled to a bill of particulars stating how the accident occurred, to the extent of showing in what respect defendant is claimed to have been negligent and on what theory plaintiff seeks to hold him liable. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 956.] On reargument. Former opinion modified. For former opinion, see 106 N. Y. Supp. 1094. Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ. PER CURIAM. This is a reargument of part of an appeal which came before this court at the October term, 1907, and was determined by an order of this court, made and entered November 29, 1907. Leave to reargue this appeal was granted upon defendant's motion by order of this court made and entered on January 22, 1908. The original appeal was by defendant from so much of the order of the City Court, made and entered on July 12, 1907, as denied defendant's motion for a bill of particulars of plaintiff's complaint in certain respects. Upon the appeal, the order was modified, and, as modified, affirmed. See 106 N. Y. Supp. 1094. After further consideration of the case, upon the reargument, we conclude that the defendant is en |