National Gum & Mica Co. v. Century Paint & Wall Paper Co.

Appellate Division of the Supreme Court of New York

National Gum & Mica Co. v. Century Paint & Wall Paper Co.

117 A.D. 267, 102 N.Y.S. 327, 1907 N.Y. App. Div. LEXIS 234

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

DecidedJanuary 25, 1907

StatusPublished

This text of 117 A.D. 267 (National Gum & Mica Co. v. Century Paint & Wall Paper Co.) 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

National Gum & Mica Co. v. Century Paint & Wall Paper Co., 117 A.D. 267, 102 N.Y.S. 327, 1907 N.Y. App. Div. LEXIS 234 (N.Y. Ct. App. 1907).

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Opinion

Laughlin, J.:

It appears that the appellants at the time the contract was executed objected to its phraseology and asked that it be amended in the particulars in which they now seek to have it reformed, that.its [268]*268meaning might .be clear,, but that "they" were induced to refrain from insisting upon'such amendment upon representations made in behalf .of the .plaintiffs that the contract,.as drafted, did'clearly express the . agreement-, as' to which -there was no dispute and that the proposed amendment was not necessary. The appellants, in their -pleading which they seek to amend, admitted the execution of the agreement-and that they do not now deny,, but they charge that the plaintiffs have taken advantage of the phraseology which the appellants at the time of the execution of thecontract deemed ambiguous, and now contend for,a construction.contrary to'the agreement .as actually intended by both parties at the time. They claim that the plaintiffs now contend, for an erroneous construction, of which, until the recent decision of the Special Term in Kings county in ' the case of Kalbacli against them, they did not deem the contract fairly susceptible. They now, however, ask to have the contract reformed to clearly express the agreement which the parties intended to make by the contract as. drafted. They are not guilty of laches and they should be afforded an opportunity to" establish, if they can, facts which will warrant, the court in reforming the contract before ■they are obliged to comply therewith. It is doubtful whether the contract is susceptible of the Construction'-for which the plaintiffs contend, but in the circumstances the appellants should hot be obliged to run the risk of a favorable construction' and should be permitted to have .their pleadings' in .such form that they may, if necessary, demand the reformation of the contract.. Since, however, the effect of granting the application’will be to take the case off the. calendar and-delay the trial of the issue and to present a new issue, the amendment should only, be granted upon payment of all.costs of-the action to date;-

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted upon payment of all costs to date. . • '

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred. '•

Order. reversed, with ten dollars costs and disbursements, and motion granted on conditions stated-m opinion; Settle order on notice.

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Laughlin, J.:

It appears that the appellants at the time the contract was executed objected to its phraseology and asked that it be amended in the particulars in which they now seek to have it reformed, that.its [268]*268meaning might .be clear,, but that "they" were induced to refrain from insisting upon'such amendment upon representations made in behalf .of the .plaintiffs that the contract,.as drafted, did'clearly express the . agreement-, as' to which -there was no dispute and that the proposed amendment was not necessary. The appellants, in their -pleading which they seek to amend, admitted the execution of the agreement-and that they do not now deny,, but they charge that the plaintiffs have taken advantage of the phraseology which the appellants at the time of the execution of thecontract deemed ambiguous, and now contend for,a construction.contrary to'the agreement .as actually intended by both parties at the time. They claim that the plaintiffs now contend, for an erroneous construction, of which, until the recent decision of the Special Term in Kings county in ' the case of Kalbacli against them, they did not deem the contract fairly susceptible. They now, however, ask to have the contract reformed to clearly express the agreement which the parties intended to make by the contract as. drafted. They are not guilty of laches and they should be afforded an opportunity to" establish, if they can, facts which will warrant, the court in reforming the contract before ■they are obliged to comply therewith. It is doubtful whether the contract is susceptible of the Construction'-for which the plaintiffs contend, but in the circumstances the appellants should hot be obliged to run the risk of a favorable construction' and should be permitted to have .their pleadings' in .such form that they may, if necessary, demand the reformation of the contract.. Since, however, the effect of granting the application’will be to take the case off the. calendar and-delay the trial of the issue and to present a new issue, the amendment should only, be granted upon payment of all.costs of-the action to date;-

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted upon payment of all costs to date. . • '

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred. '•

Order. reversed, with ten dollars costs and disbursements, and motion granted on conditions stated-m opinion; Settle order on notice.

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117 A.D. 267, 102 N.Y.S. 327, 1907 N.Y. App. Div. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-gum-mica-co-v-century-paint-wall-paper-co-nyappdiv-1907.