5 West Corp. v. 5-15 West 125th Street Corp.

Appellate Division of the Supreme Court of New York

5 West Corp. v. 5-15 West 125th Street Corp.

2 A.D.2d 676, 154 N.Y.S.2d 651, 1956 N.Y. App. Div. LEXIS 4836

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 26, 1956

StatusPublished

This text of 2 A.D.2d 676 (5 West Corp. v. 5-15 West 125th Street Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

5 West Corp. v. 5-15 West 125th Street Corp., 2 A.D.2d 676, 154 N.Y.S.2d 651, 1956 N.Y. App. Div. LEXIS 4836 (N.Y. Ct. App. 1956).

Pincite

Opinion

Order [denying motion to dismiss complaint] unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs. The mere allegation in the complaint of a mistake upon the part of plaintiff in not demanding arbitration of the rent, as allowed by the lease, is not sufficient to enlist equity in plaintiff’s behalf. Nor is any forfeiture here involved which would warrant equitable intervention to extend beyond the contract limitation the time in which plain[677]*677tiff was entitled to demand arbitration. Plaintiff having conceded on the argument of the appeal that it could not frame a complaint to allege more than the “mistake” alleged in the present complaint, there is no occasion for granting leave to amend. Order [restraining appellant from collecting more than stated rent] unanimously reversed and the cross motion of plaintiff denied. Concur — Peek, P. J., Breitel, Prank, Valente and Bergan, JJ.

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Order [denying motion to dismiss complaint] unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs. The mere allegation in the complaint of a mistake upon the part of plaintiff in not demanding arbitration of the rent, as allowed by the lease, is not sufficient to enlist equity in plaintiff’s behalf. Nor is any forfeiture here involved which would warrant equitable intervention to extend beyond the contract limitation the time in which plain[677]*677tiff was entitled to demand arbitration. Plaintiff having conceded on the argument of the appeal that it could not frame a complaint to allege more than the “mistake” alleged in the present complaint, there is no occasion for granting leave to amend. Order [restraining appellant from collecting more than stated rent] unanimously reversed and the cross motion of plaintiff denied. Concur — Peek, P. J., Breitel, Prank, Valente and Bergan, JJ.

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Bluebook (online)

2 A.D.2d 676, 154 N.Y.S.2d 651, 1956 N.Y. App. Div. LEXIS 4836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/5-west-corp-v-5-15-west-125th-street-corp-nyappdiv-1956.