The Superior Court of New York City December 4, 1882 (Ewart v. Schwartz)

By the Court.—Sedgwick, Ch. J.

The present action is upon contract and not in tort. The statements in the complaint that' allege that the defendant was guilty of a fraud in contracting, or incurring the liability, did not change the nature of the cause of action. They were made under subdivision 4 of section 549 of the Code Civ. Proc.