J. P. Duffy Co. v. Todebush , 159 N.Y.S. 299 ( 1916 )

Jenks, P. J.:

We do not read the opinion of the Court of Appeals in this case as a decision that the plaintiff could have had adequate relief in the law side of the court. The judgment of this court in its First Department, that dismissed the complaint (157 App. Div. 688), rests upon grounds that could not be obviated in the action at law. The Court of Appeals affirmed the judgment (216 N. Y. 297), but did say that the weakness of the plaintiff’s case depended primarily, not upon the proper application of the rule invoked by the Appellate Division, but upon a total failure of proof,, and did declare that if it had appeared that plaintiff was prepared to establish directly or inferentially that the defendant understood that he was promising to pay the debt of the corporation, it would then be necessary to decide whether or not such evidence was competent under the .rule of Grant v. Naylor (4 Cranch, 224) (and like cases), the authority mainly relied upon by the Appellate Division. As the case now stands, the plaintiff is dismissed from the law side of the court.

“ By inadequacy of the remedy at law ” is not meant a failure to produce the money, “ but that in its nature or character it is not fitted or adapted to the end in view.” (Thompson v. Allen County, 115 U. S. 554.) And unless the legal remedy “both in respect to the final relief and the mode of obtaining it is as efficient ” as the equitable remedy, the latter is not denied. (Kilbourn v. Sunderland, 130 U. S. 505.) The relief of reformation is in the peculiar province of the equity court, which may apply the relief to a guaranty for a mistake of fact. (Prior v. Williams, 3 Abb. Ct. App. Dec. 624, citing Wiser v. Blackly, 1 Johns. Ch. 607, and other authorities, and cited in Simpkins v. Taylor, 81 Hun, 467; Smith v. Allen, 1 Saxton [N. J.), 43; Olmsted v. Olmsted, 38 Conn. 309; Besore v. Potter, 12 Serg. & Rawle [Penn.], 154. See, too, Clute v. Knies, 102 N. Y. 377; Brandt Suretys. & Guar. [3d ed.] § 159.) Ontario Bank v. Mumford (2 Barb. Ch. 596), cited by the learned counsel for the appellant, is criticised by Beckham, J., writing for the court in Prior v. Williams (supra). To justify the relief, the proof must be so cogent and so convincing that the court is thoroughly satisfied. (Southard v. Curley, 134 N. Y. 148, and cases cited.) The present action seeks both reformation and recovery upon the guaranty so reformed. In Abbey v. Wheeler (170 N. Y. 127) it is said: “ When a complaint is met by a demurrer on the ground that no cause of action is stated, the question always is, assuming every fact alleged to be true, whether enough has been well stated to constitute any cause of action whatever.” The other questions presented, of course, have received consideration, but do not justify expression.

I advise that the Order be affirmed, with ten dollars costs and disbursements, with leave to the defendant to plead over upon the payment of costs.

Thomas, Carr, Stapleton "and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, with leave to defendant to plead over upon payment of costs.