Bammon v. Holeproof Hosiery Co.

233 A.D. 699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1931
• Status: Published

Opinion

Order denying defendants’ motion to compel plaintiff to serve an amended complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; the amended complaint to be served within ten days from the entry of the order herein. The complaint sets out two kinds of causes of action. It assumes to set out a cause of action in equity to reform several instruments claimed to embody a single transaction, so as to make it conform to the alleged actual agreement of the parties, which instruments are alleged to have taken on an erroneous form as a consequence of mutual mistake of the parties or mistake of one and fraud of the other. This cause of action may properly be required to be segregated from the one or more further causes of action alleged, which causes of action are legal in their nature and arose as a consequence of the alleged breach of such agreement as reformed, and which causes of action may properly be made the subject of a jury trial if either party seasonably seeks it. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.