American Ball Bearing Corp. v. Hewes & Penn Corp.

281 A.D. 679 | N.Y. App. Div. | 1952

In an action by an individual and corporate plaintiff, named as “ tenant ” in a lease made with defendant Hewes & Penn Corporation, to recover damages for fraud allegedly practiced by said defendant in inducing plaintiffs to execute the lease, and to compel payment of a condemnation award into court for distribution on order of the court, defendant Hewes & Penn Corporation moved to compel plaintiffs to separately state and number the causes of action now alleged in the complaint as one cause of action, and defendants Bamberger (the second mortgagees) moved to dismiss the complaint for insufficiency or, in the alternative, to compel plaintiffs to separately state and number. Special Term granted the motion of Hewes & Penn Corporation to compel plaintiffs to separately state and number, granted the motion of the defendants Bamberger to dismiss the complaint, and denied the latters’ motion to separately state and number as unnecessary in view of the dismissal of the complaint as to them. Plaintiffs appeal. Order unanimously affirmed, with $10 costs and disbursements. If the only claim of plaintiffs were for the value of the leasehold for its unexpired term, it would not be necessary for plaintiffs to separately state and number their causes of action because both plaintiffs are named as “tenant” in the single lease instrument. However, since plaintiffs also claim as damages the cost of repairs, the cost of moving, the cost of fixtures, and the cost of obtaining the leasehold, each plaintiff must separately demand the damages to which he or it is entitled, depending upon who suffered each item of loss claimed. The complaint contains no allegations of fraud against defendants Bamberger, nor are plaintiffs, as “tenant” entitled to share in any part of the condemnation award due to the second mortgagees. If plaintiffs succeed, they will be entitled to share only in that part of the award due to the owner. Present — Holán, p. J., Carswell, Johnston, Adel and Wenzel, JJ.