Little agt. Lynch. effect by the additional liberty given to file it with the clerk. That was not the form in which the section was enacted, but it declared that either might be done to maintain the force and effect of the report. It might, within the sixty days, "be either filed with the clerk or delivered to the attorney for one of the parties." The referee accordingly had his election to do one or the other of these acts, and either would comply with what the legislature has required. If he filed it with the clerk, that would be sufficient. If he did not do that, then a delivery to the attorney for one of the parties would secure the preservation and validity of the report. And no more was required to make this delivery to the attorney for one of the parties than had been when the same provision formed a part of the Code of Civil Procedure. Consequently what would have been a delivery of the report to an attorney for one of the parties under the Code of Procedure, would be equally as complete a delivery of it under this section of the Code of Civil Procedure. And so it was considered in Geib agt. Topping (supra). The same point arose in Cornelius agt. Barton (12 N. Y. Weekly Dig., 216), where this construction of the section was sustained by the court. Certainly, as the enactment is precisely the same concerning the delivery of the report to the attorney in the Code of Civil Procedure as it was in the Code of Procedure, what would constitute a compliance with the latter should be held to be equally as effectual under the former. For the additional privilege secured to the referee of filing his report with the clerk in no manner tended to indicate what might be necessary to constitute a delivery to the attorney. Each proceeding was separate and distinct. What was a good delivery under the same language employed in the Code of Procedure must necessarily be equally as good under the like phraseology in the Code of Civil Procedure. The order should be reversed with the usual costs and disbursements, and an order entered denying the motion. Doty agt. Campbell. COUNTY COURT. JOSEPH DOTY agt. CHARLES CAMPBELL, appellant. False representations— When action founded upon fraud and deceit of defendant cannot be maintained —Justices' courts — Discretion of justice as to allowing amendments - When improperly exercised. An action founded upon fraud and deceit of defendant cannot be maintained in the absence of proof that the defendant believed, or had reason to believe, at the time he made them, that the representations made by him were false, and for that reason fraudulently made, or unless it be shown that he assumed, or intended to convey the impression, that he had actual knowledge of their truth, though conscious that he had no such knowledge. In an action in a justice's court, during the progress of the trial and while the plaintiff was examining one of his witnesses, the defendant appeared before the justice by his attorney and asked to be permitted to answer and disprove the case as made by the plaintiff. The justice denied the request : Held, error; the discretion that is given to a court is a "judicial discretion," which must be exercised according to legal and just rules. It cannot be an arbitrary discretion to be exercised as the court shall arbitrarily decide, overriding the natural rights of a suitor and depriving one of his means of fairly meeting a claim urged against him. Allegany county, October, 1884. Curtiss, Murphy & Bernkopf, for appellant. L. E. Cheeseman, for respondent. FARNUM, C. J.-This action was commenced in a justice's court to recover damages of the defendant on account of fraudulent statements and representations alleged to have been made by the defendant to the plaintiff to induce, and which did induce him and another to sell the defendant certain personal property and take in exchange therefor the promissory note of Enos Emerson. The substance of the alleged statements made by the defendant are set forth in the complaint, as follows: "The defendant, stated and represented that Enos Emerson, the maker of said Doty agt. Campbell. note, was solvent and responsible and had a farm worth six thousand dollars, and that the note could be collected from him." The plaintiff to establish his case upon this branch of it, testified: "I asked him, the defendant, if he knew anything about the responsibility of the maker (of the note); I did not know Enos Emerson at the time; he said he owned a farm in Bolivar for which he had paid $5,000 or $6,000 in cash, and that he was perfectly responsible; he said he was good and the note was perfectly good by reason of his owning the farm; Enos Emerson did not have a farm worth $5,000 or $6,000, in Bolivar, at that time." The plaintiff also called Fred R. Doty as a witness, who testified: "Campbell stated that Emerson had lately purchased and then owned a farm in the town of Bolivar, N. Y., for which he had paid $5,000 or $6,000, in cash, and that Mr. Emerson was perfectly responsible for the amount of the note, and for that matter for the value of all the wagons we had, and that the note would be paid at maturity.” Enos Emerson was then sworn as a witness for the plaintiff, and had testified that on April 5, 1883 (the date of the alleged representation by defendant), he was and ever since had been insolvent, when James M. Curtiss, an attorney of Bolivar, N. Y., appeared in court before the justice and asked to interpose and offered an answer in writing, which offer was refused by the justice. The answer so offered was filed by the justice, and upon appeal returned with the proper process and proceedings had before him. The answer contained a general denial that Emerson was solvent and able to pay all his debts; that Emerson confessed a judgment upon the note in question before a justice of the peace on the 6th day of ,1884, for $216.65. The witness Emerson then continued with his testimony, and stated "April 20, 1883, I did not own a farm worth $5,000 or $6000 in the town of Bolivar. I have recited all the testimony given upon the trial bearing upon the statement of the defendant, and its falsity. Taking Doty agt. Campbell. all the testimony as most favorable to the plaintiff, it appears that the defendant stated Emerson had a farm in Bolivar for which he had paid $5,000 or $6,000; that the note was good, by reason of Emerson owning the farm, and that Emerson was solvent and responsible. There is no proof to correspond with the allegation of the complaint, that the defendant represented that Emerson had a farm worth $5,000 or $6,000, and there is no proof but that the representation of the defendant was true, that Emerson had paid $5,000 or $6,000 for it, so that all the representation the plaintiff can rely upon to maintain his action is, that the defendant stated Emerson was solvent and responsible. Is this such a representation, that if false, the plaintiff will be entitled to recover? There is no direct evidence that the defendant knew this statement to be untrue. Then is it established that the defendant assumed or intended to convey the impression that he had actual knowledge of the solvency of Emerson, though conscious that he had no such knowledge. Taking the statement as a whole, there being no evidence but that Emerson had paid $5,000 or $6,000 for the farm in Bolivar, can it be said that the addition that Emerson was solvent and responsible was more than the expression of an opinion based upon the fact that Emerson had paid $5,000 or $6,000 for the farm. The respondent has cited numerous authorities contending that they are in point and sustain this judgment. In Bishop agt. Davis (9 Hun, 342), stress is laid upon the point that the representations in that case were minute, positive, unconditional and unequivocal, and were such that from their very nature, the defendant assumed to have knowledge upon the subject of which he spoke. The authorities bearing upon this question are collated in Indianapolis P. & C. R. R. Co. agt. Tyng (2 Hun, 311), and at page 321 the court say: "It is quite apparent from the facts established, that the defendant, if he did not know of the falsity of the statements made, at least assumed, or intended to convey the impression that he had Doty agt. Campbell. actual knowledge of the truth of the representations as to the condition of the engines, though concious that he had not;" and in that case the court in speaking of actions for deceit resting on representations of insolvency say (page 321): "It may be assumed, that when information of that kind is sought, it must necessarily partake of the character of information only and not of knowledge, unless by some special and particular phrase it is intended to be otherwise." Viewing the statement of the defendant that Emerson was solvent and responsible, in the light of all that was said, I cannot spell from it that it was more than the expression of an opinion based on the prior statement, and I fail to see where he assumed to speak from knowledge, or where the plaintiff had a right to infer that he did. Marsh agt. Falken (40 N. Y., 562) was brought to recover damages upon the statement made by the defendant that one "Kahn was perfectly good - good for $17,000 or $18,000 in property in Syracuse, and if I (plaintiff) took Kahn's note he (defendant) would discount it." In delivering the opinion of the court, justice DANIELS said (page 567): "In order to determine whether material representations of actual knowledge of the existence of material facts be deceitfully or fraudulently made, or whether that may be properly and fairly inferred, regard must be had to the transaction in which they are made, and to the subject to which they relate; for, as to many subjects of trade and traffic, the acquisition of such knowledge is common, and, therefore, when imputed by the representations made, it may be reasonably expected to have been intended that the person to whom they may be made should understand that to be their character. As to many other things the possession of actual knowledge is exceedingly rare and exceptional, and when representations are made concerning them, they are usually understood as amounting to no more than the candid and sincere conviction of the person making them. They are expressions of opinion or judgment, rather than absolute |