Citation Numbers: 130 Misc. 784
Judges: Frankenthaler
Filed Date: 12/1/1927
Status: Precedential
Modified Date: 1/12/2023
According to the allegations of paragraph 18 the defendant represented that the structures on the premises conveyed to plaintiff “ were legally and validly erected and in existence and were legally and validly of the character that they appeared to be.” The complaint charges, in addition, that these representations were untrue; that defendant knew them to be untrue; that plaintiff relied upon them, and that the value of the property if occupied by three or more families not doing their own cooking on the premises is much less than if such cooking were permitted. It is, therefore, a not unreasonable inference that plaintiff is attempting to predicate a cause of action upon the representations alleged to have been made by defendant. This view is strengthened by the fact that the charges of misrepresentation are unnecessary to the cause of action attempted to be set up in other parts of the complaint, viz., one for specific performance of the contract free from violations which would have affected the property at the date thereof had they not been removed from the record, to defendant’s knowledge, by “ improper, collusive or fraudulent means.” If this manner of eliminating the violations be sufficient to entitle plaintiff to relief, it would hardly be necessary for it to establish, in addition, active misrepresentations by the defendant. It would suffice for plaintiff to allege, as it has, that it believed that the structure complied with the law. It may be that plaintiff has intended to set forth but a single cause of action. The fact is, however, that its pleading is .fairly susceptible of the interpretation that it contains at least two causes of action, based