Cohn-Baer-Myers & Aronson Co. v. Realty Transfer Co.

Ingraham, J.:

I concur with Mr. Justice Laughlin in the opinion that this action cannot he maintained upon the plaintiff’s theory of alternative relief as such an action is only justified where, on ■ the. facts stated, a plaintiff would be entitled to the alternative relief demanded against the same defendant or defendants.- As I understand it, neither at common- law nor under the Code of Civil Procedure can a- plaintiff join two defendants upon a claim that he has a right to relief against one or the other of said defendants. (Clark v. Lord Rivers, L. R. 5 Eq. Cas. 91.) If, however, the complaint alleges facts from which there follows the legal conclusion that the plaintiff is entitled to relief against a defendant named, the complaint, can he sustained against the defendant against whom the plaintiff is entitled to relief, either legal or equitable. But the difficulty with this complaint, is that-no facts are alleged which show that the plaintiff is entitled to relief against either defendant. As against the defendant Cunningham there is no allegation to show that the plaintiff ,or its assignee would be entitled to a decree for specific performance or that there was a breach of his contract to convey. Bor does the complaint allege facts from which the legal conclusion that the plaintiff is entitled to any relief against the defendant Bealty Transfer Company would follow, as it is not alleged that the failure of the Bealty Company to obtain title to the property covered by the contract between the plaintiff and defendant Cunningham Avas or was not the fault of the Bealty Company. If the Bealty Company, without justification refused to take title the plaintiff would have an action at Irav to recover its damages as for a breach of a contract, but to sustain such a cause of action a breach must be alleged.

The assignment by the plaintiff to the Bealty Company provides that “ should the Bealty Transfer Company fail to obtain title to the aforesaid premises in accordance with the aforesaid agreement, Avithout fault on the part of the said Bealty Transfer Company, then this assignment shall be canceled and annulled, and any interest or rights passing hereunder to said Bealty Transfer Company shall be reassigned and retransferred to ” the plaintiff; and it was upon this contingency that the plaintiff was to return the $4,000 paid on the execution of the contract to the Bealty Company. The plaintiff alleges no facts that would justify a judgment for a reassignment of this contract by the Bealty Transfer Company or justify a specific performance of that agreement, as it fails to allege that the Bealty Transfer Company failed to obtain title to the premises without fault on its part. It is quite clear that the complaint was not framed upon any such theory, as no demand for such reassignment was made, and there is no offer to pay the $4,000, nor is it tendered by the complaint. While it may be that a tender before the commencement of the action is not essential to maintain an action in equity, when a party entitled.to an assignment or conveyance of property upon the pay-merit of a sum of money comes into court to enforce that right the •complaint must at least .offer to pay the amount payable upon the transfer asked for:

Recognizing the liberal, rule of pleading prevalent in this State to which Mr. Justice Laughlin calls attention, I still think that to entitle' the plaintiff to relief either at law or in equity, the comolaint must state.facts from which the legal conclusion follows that the plaintiff is entitled to some -relief, and the complaint in this ease failing to state such facts the action could not be maintained.

The allegation in the answer of the defendant Realty Company which in substance alleges that the defendant Cunningham could not convey marketable title to the property contracted to be con- ’ veyed is an allegation made as a basis' for affirmative relief against the plaintiff by the defendant Realty Company, , and the plaintiff, by the reply, denied this allegation. The plaintiff c'annot sustain a cause of action upon an allegation in an answer of a defendant which he specifically denied by the reply. ' J. .think the condition of the pleadings at the trial justified the court in. dismissing the complaint as against both defendants.

JJlie judgment-appealed from should he affirmed, with costs.

. Clarke and Houghton, JJ., concurred'; Patterson, P. J., and . Laughlin, J., dissented in part.