Kass v. Garment Center Realty Co.

Martin, J.: The complaint alleges that a written agreement was entered into for the lease of a loft, at a yearly rental of $22,500; that, prior to the preparation of the lease, plaintiff and defendant agreed that the rental should be at the rate of $1.50 per square foot; that defendant represented that the premises contained 15,000 square feet; that because of the “ mutual mistake of the plaintiff and the defendant, or by the mistake of the plaintiff and by the fraud of the defendant,” the written lease did not embody the actual agreement, the number of square feet in the loft being less than that mentioned when the parties agreed prior to the execution of the lease that the rental should be at the rate of $1.50 per square foot. The relief prayed for in the motion papers is set forth as follows: “ For judgment pursuant to Rule 106 of the Rules of Civil Practice, dismissing the plaintiff’s complaint upon the ground that it appears upon the face thereof that the complaint does not state facts sufficient to constitute a cause of action against the defendant, or in the alternative, for an order pursuant to Rule 102 of the Rules of Civil Practice, directing the plaintiff to serve an amended complaint upon the ground that paragraph Fifth of the plaintiff’s complaint is so indefinite, uncertain and obscure that the precise meaning thereof is not apparent, as the defendant is unable to ascertain if the plaintiff refies upon an alleged ‘ mutual mistake of the plaintiff and the defendant ’ or the alleged ‘ fraud of the defendant in concealing its knowledge thereof.’ ” The order entered at Special Term provides as follows: [649] “ Ordered, that the motion for judgment dismissing the complaint herein be and the same hereby is denied and that the plaintiff herein, pursuant to Rule 102 of the Rules of Civil Practice serve an amended complaint within twenty days after the entry of this order.” The court held that the complaint was defective because it did not allege defendant knew there were not 15,000 square feet in the loft, when it so asserted. It was held, however, that the complaint sufficiently stated a cause of action and that plaintiff may plead, alternatively, mutual mistake, or mistake on plaintiff’s part and fraud by defendant. In paragraph “ fifth ” of the complaint it is set forth that the oral agreement of the parties was not effectuated by the written lease because of the “ mutual mistake of the plaintiff and the defendant,” or “ by the mistake of the plaintiff and by the fraud of the defendant in concealing its knowledge thereof.” Appellant urges that the plaintiff may not disjunctively allege facts to justify equitable intervention. In Hasberg v. Moses (81 App. Div. 199) this court said: “ Because the pleading states facts for relief in an alternative form does not make it bad, if any one of such averments would be sufficient upon which to found the relief asked for in the complaint. (Pittsfield Nat. Bank v. Tailer, 60 Hun, 130.) ” It was also said in that case that there are certain actions where such a form of pleading is necessary to truthfully plead a cause of action. At page 205 the following will be found: “ Mr. Abbott, in his note to Munn v. Cook (24 Abb. N. C. 314), very clearly states the rule governing such cases: ‘ As before explained, there is a class of cases in which for no fault of his own, and usually by fault of the defendant, the plaintiff does not know which of two absolutely inconsistent grounds he may succeed in proving, either of which will entitle him to recover; as in the case of fraud or mistake, or a case of suspected agency for an undisclosed principal. If it is important to plaintiff’s policy, as it usually is," especially in such classes of cases, to obtain a sworn answer, he must make a sworn complaint; and he cannot, even on information and belief, swear to inconsistent facts. Therefore he cannot state such inconsistent grounds of recovery in separate causes of action, each alleged without qualification. He must state them, if at all, in a single cause of action and in the alternative. A rule which allows plaintiff to state essential allegations in the alternative, is obviously capable of much abuse, because by multiplying alternatives he may leave the defendant quite in the dark as to the facts the latter must be prepared to meet. But within limits [650] which will exclude such abuses, the right of the plaintiff to allege alternative grounds is now recognized by the highest authority, and is not without sanction in the lower courts and courts of other jurisdictions.’ ” In that case it is further stated: “ Averments in this form are not the subject of demurrer. The remedy, if they are so uncertain as to leave the adverse party in the dark in respect to that with which he is charged, is by motion to make the pleading more definite and certain.” (See, also, Garrett Co. v. Astor, 67 App. Div. 595; Williams v. United States, 138 U. S. 514; Haviland v. Willets, 141 N. Y. 35.) The defendant is not entitled to compel the plaintiff to definitely allege whether he will seek relief upon the ground of mutual mistake of the parties, or because of fraud on the part of the defendant. The plaintiff has a right to make these allegations in the alternative and, upon the trial, to obtain relief' in accordance with his proof. In Hasberg v. Moses (supra) this particular kind of an action was cited as an example of one in which alternative pleading should be permitted. The evident intention of the plaintiff is to prove that the written lease resulted from a mutual mistake, for the reason that the parties acted upon the belief that the floor contained 15,000 square feet. If the defendant on the trial contends there was no mistake, that he knew that the loft contained but 13,000 square feet, then the plaintiff will probably contend that defendant fraudulently con- • cealed such knowledge, and represented to the contrary. The defendant was not entitled to judgment dismissing the complaint pursuant to rule 106 of the Rules of Civil Practice, for the reason that the complaint stated a cause of action. It was not entitled to an order directing the plaintiff to serve an amended complaint confining himself to mutual mistake or to mistake on plaintiff’s part and alleged fraud of defendant in concealing knowledge of certain facts. The defendant not being entitled to any of the relief prayed for in the motion papers, and there being no appeal by plaintiff, the order should be affirmed, with ten dollars costs and disbursements. Dowling, Smith and Finch, JJ., concur; Merrell, J., dissenting in part.