152 N.Y.S. 237 | N.Y. App. Div. | 1915
This is an action on a lease in writing and under seal, executed on the 2d day of December, 1908, by the then trustees under the will of the plaintiffs’ testatrix to the Plaza Bank, by which they leased to the bank the premises known as Nos. 2 and 4 East Fifty-eighth street, in the borough of Manhattan, New York, for a term commencing at noon on the 1st day of May, 1909, and ending at the same hour on the 1st day of May, 1914. The defendant succeeded by merger to the rights and obligations of the Plaza Bank under said lease on the 22d day of December, 1911. It is provided in the lease that the lessee should pay the rent reserved and “pay and discharge all annual taxes as shall during said term be imposed on said premises hereby demised as soon as they become due and payable,” The plaintiffs allege that the annual taxes for the year 1914, aggregating $10,235, were duly imposed upon the premises on the 27th day of March, 1914, and that one-half thereof became due and payable on the 1st day of May, 1914, at half-past nine o’clock in the forenoon, “and the other half of the said' taxes became payable at the same time,” and that defendant has failed and refused to pay the same, or any part thereof; that the 29th day of May, 1914, was the last day on which the first half of the taxes could be paid, without penalty or interest, and that on that day, after the refusal of the defendant to pay the taxes, the plaintiffs paid the receiver of taxes the sum of $5,117.50, being one-half of the whole amount. Judgment is demanded against the defendant for the entire amount of the taxes, together with interest on one-half of the amount from the 29th day of May, 1914, and on the other half from the 1st day of November, 1914.
The defendant admits the execution of the lease, and that by merger it became liable on the covenants and agreements of the lessee; and pleads as a separate defense and “by way of counterclaim ” that by the negotiations between the parties preliminary to the execution of the lease it was understood and agreed that the lessee was to pay the taxes only for the years 1909 to 1913, inclusive; that the trustees undertook to draw the lease in accordance with said agreement, but in so doing 1 ‘ used language which inadequately and imper
The plaintiffs replied, putting in issue the allegations of the counterclaim upon which the reformation of the lease is demanded, and thereupon moved for an order directing a separate trial of the equitable issues presented by the counterclaim and staying the trial of the other issues in the meantime and they appeal from the order denying the motion.
The learned counsel for the defendant, in opposing the motion and in attempting to sustain the order, relied upon dicta in the opinions in certain decisions in the Court of Appeals and in the Appellate Division, which tend to sustain his contention that a party to a contract in writing may without having the contract reformed defend an action brought thereon on the ground that the agreement as reduced to writing does not express the true agreement of the parties, but which, when considered in the light of the facts presented by those cases, and the points decided therein, do not sustain it.
It has always been the rule that a party sued on a contract may, without obtaining a decree annulling it, defend on the ground that his signature thereto was induced by fraud, which if established vitiates the contract, or on the ground that the instrument purporting to be a contract was, for any reason, void, or that it never became a binding obligation, as for want of consideration or failure of delivery. (Thomas v. Scutt, 127 N. Y. 133; Bennett v. Edison Electric Ill. Co., 164 id. 131; Johnson v. Johnson, 157 App. Div. 289, 291.) It has also been held that in an action at law based on a contract in writing the defendant may show to avoid liability that the minds of
If the doctrine for which counsel for the respondent contend were to prevail, then in every action at law based on a contract in writing it would be open to the defendant to claim before a jury that certain agreements upon which the minds of the parties met in the preliminary negotiations were through inadvertence or by mistake omitted from the formal contract, and thus contracts, without being reformed, would always be subject to such defenses, and no contract which a jury would consider inequitable or unjust or harsh could ever be enforced. There is no precedent for such a theory, and none should be established. If the agreement, as reduced to writing, does not embody the agreement of the parties with respect to the payment of the taxes, then a court of equity should reform it, and as reformed it will be a complete defense to the action. In such case our practice requires that the issue arising on the equitable counterclaim should be tried first. (Goss v. Goss &
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.