John F. James & Sons, Inc. v. Burdeau

258 A.D. 1077, 18 N.Y.S.2d 36, 1940 N.Y. App. Div. LEXIS 8961

Opinion

Action on a lease executed by and between the plaintiff’s assignor, agent of the lessor, and the defendant, lessee. In the Municipal Court of the City of New York, Borough of Brooklyn, partial summary judgment was rendered in favor of the plaintiff. On appeal to the Appellate Term there was a reversal and the defendant’s motion for summary judgment was granted. The appeal, by permission, is by the plaintiff, from the Appellate Term order. Order of the Appellate Term modified by adding thereto a provision that the reversal of the Municipal Court order, and the granting of defendant’s motion for summary judgment, are without prejudice to plaintiff’s right to maintain an action for reformation of the instrument and to sue on a reformed instrument. As thus modified, the order is unanimously affirmed, without costs to either party. The use of the terms “ Agents of the Lessor ” and “ Lessor ” did not render the sealed instrument void. The undisputed evidence appearing in the affidavits and the pleadings shows that the defendant at all times recognized the plaintiff’s assignor as standing in the relationship of landlord, because of the obviously mistaken use of terminology, the instrument should be reformed to show the true understanding of the parties before enforcement thereof is sought. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.