101 N.Y.S. 217 | N.Y. App. Div. | 1906
The plaintiff brings this action in equity to reform a written agreement between defendant and one L. M. Eirick, to whose rights
The facts as they now appear differ in many essential particulars from those which were made to appear upon the former, trial, and necessitate a re-examination of the questions involved.' The agreement sought to be reformed and enforced was in writing and dated August 7, 1900; the parties to it are this defendant and L. M. Eirick “as President for a corporation to be formed hereafter.” By the agreement the defendant agreed to lease to Eirick certain property in Pittsburgh for a term of ninety-nine years from April 3, 1901, at a stipulated rent, and Eirick agreed to erect upoAthe property a theatre building at an early date. Defendant also gave to Eirick an option to purchase the property at any time during the first -ten years of the lease at a stipulated price. .This agreement was obviously intended merely as án executory contract to make a for* mal lease in the future and its final clause read as'follows.: “ This, agreement is made, to insure, the execution of the lease, which- when executed shall be subject to the approval of the attorneys to the parties of this agreement.” .The reformation sought is the substitution in this clause of the words “ before execution thereof ” for the words “ when executed.”
As pointed out in the former opinion, such reformation is quite unnecessary., since the clear intention -of the clause and the only reasonable construction thereof .is that the lease before execution shall have been approved by the attorneys! It would be absurd to construe the clause as meaning that the lease should first be executed by the parties and. then approved by their attorneys.. So far ' then as concerns the reformation of the contract the plaintiff needs no relief. . Is it entitled to specific performance ? Soon after this agreement was made a lease' was prepared and approved by the. attorneys for defendant and Eirick and by Eirick himself and certain gentlemen who were interested in the projected theatre enterprise, and who, with Eirick' afterwards organized the ' plaintiff
Thefifth, so far as significant, reads as follows: “Upon the completion of the building as hereinbefore provided and the assignment of this lease, and the written acceptance and assumption of all of its terms' by such assignee and his agreement to become liable for the performance of all covenants of the lessee to be thereafter performed, the lessor hereby agrees to release the lessee from all personal liability hereunder, and thereupon the assignee of the lease shall become liable for all covenants of the lessee as if he were originally the lessee or party of the second part hereto; all liability
The judgment should be affirmed, with costs.
.Patterson, Ingraham, Laughlin and Houghton, JJ., concurred.
Judgment affirmed, with costs.