141 N.Y.S. 432 | N.Y. App. Div. | 1913
The defendants were the owners of two buildings situate on opposite sides of Livingston street in the borough of Brooklyn, ■ and being desirous of connecting the same, applied to the board of estimate and apportionment of the city of New York for permission to construct and thereafter maintain a tunnel beneath the street. The board entertained the application and thereafter passed a resolution giving its consent, upon certain conditions, subject to revocation, for a period of twenty-five years. Among the conditions imposed weré that the defendants should pay to the city for the privilege $800 per year for the first five years and an increased sum for each succeeding five years, and, in addition, that they should execute and file with the comptroller of the city a written agreement to make
The answer set up a general denial and for a “partial' defense and by way of counterclaim ” alleged that the agreement was made under a mutual mistake of fact, in that both parties at the time it was executed supposed that the fee of that portion of the street through which the tunnel was constructed belonged to the city, whereas only fifteen out of fifty feet was owned by it — the remaining thirty-five feet being owned by the defendants; that the amount stipulated to be paid to the city as compensation for the privilege was fixed in accordance' with what both of the parties understood was the area of the city’s property which would be occupied by the tunnel; and that had they been aware of defendants’ ownership of thirty-five feet of the length of the tunnel the amount fixed would have been proportionately less. The judgment demanded. was a dismissal of the complaint and that the agreement be reformed by reducing the amount payable to the city proportionate to the part of the tunnel actually owned by it, and that defendants recover $280, being that portion of the $400 already paid which was in excess of the amount which would have been due had the contract expressed the intention of the parties; and that an injunction issue restraining the city from applying any portion of the $1,500 in extinguishment of the payments provided in the original contract. A reply- put in issue the allegations of the counterclaim.
The action came on for trial at a Trial Term and the parties then stipulated that it be tried before the court and one juror and that each side, at the conclusion of the trial, would move for the direction of a verdict. Defendants did not then, nor had they at any time after issue had been joined, ask that the
It may not be out of place to call attention to the fact that the practice adopted is not sustained by any of the authorities cited. In an action at law, as this one was, where the answer sets up facts both as a defense and as the basis of an equitable counterclaim, upon which affirmative relief is demanded, the defendant, in advance of the trial, should apply to the court to have the equitable issue first tried at Special Term. (Goss v. Goss & Co., 126 App. Div. 748; Brody, Adler & Koch Co. v. Hochstadter, No. 1, 150 id. 527; Rubenstein v. Radt, 133 id. 57.) Here, the defendant went to trial on the law side of the court without making any application to have the equitable issues tried at Special Term and was permitted to introduce evidence, against the plaintiff’s objection, to support such issues, and, at the conclusion of the trial, asked that judgment be given for the equitable relief demanded in the answer. The court did not reform the contract, but evidently proceeding upon thé theory that there had been a mutual mistake and for that reason it should be treated as though it had been reformed, directed a verdict for about one-third of the plaintiff’s claim.
Pleadings and the rules of practice for disposing of issues raised in them would serve little purpose if a judgment obtained in this way were permitted to stand. The course pursued is sought to be justified by Bennett v. Edison Electric Ill. Co. (164 N. Y. 131). That case, as I read the opinion, does not sanction the practice here adopted, nor does it in any way sustain the respondents’ contention. There, an action was brought to recover the contract price for digging two wells. The work was done under a contract which provided that the defendant would pay to the plaintiff ten dollars per 1,000 gallons of water per day of twenty-four hours upon completion of the wells. The answer interposed alleged for a defense and
Here, fraud was not alleged in the answer, proved upon the trial, or claimed upon the argument of the appeal. Defendants’ relief was based entirely upon the assertion that both parties, at the time the agreement was executed, labored under a mistake of fact, and for that reason it did not express their intention. But assuming that to be so, the defendants, until the contract had been reformed so as to express the intention, were not in a position to obtain the relief here given. • So long as the ageement remains in force defendants are under an obligation to make the payments thereiri. provided.
Upon the merits the defendants did not establish that the agreement was the result of a mutual mistake of the parties. A finding to that effect would be against the evidence. In this connection it appeared that the defendants authorized the contractor who was to construct the tunnel to obtain the necessary permit from the city. He drafted the application
The judgment and order appealed from, therefore, are reversed, and there being no dispute as to the facts upon which defendants’ liability depends, a verdict is directed in favor of the plaintiff for $2,400, with interest as prayed for in the complaint, together with the costs in this court and in the court below.
Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.
Judgment and order reversed and verdict directed for plaintiff as stated in opinion, with costs. Order to be settled on notice.