Opinion
December 30, 1909.
Edward W.S. Johnston [ Julius G. Kremer with him on the brief], for the appellants.
Samuel I. Frankenstein, for the respondents.
This appeal is from an interlocutory judgment overruling a demurrer to the complaint. The defendants are two brothers named Hyman and Max J. Shapiro. The grievance of the plaintiffs is that in their sale of their lands to Hyman the defendants contrived and worked a fraud upon them. They aver that they were ignorant throughout the transaction of the given name of Hyman and of the existence of Max, and that the defendants took advantage of this ignorance so that, although their dealings were with Hyman exclusively, the contract for purchase was executed in the name of Max, the deed was executed to Max as grantee and the purchase-money bond and mortgage was executed in the name of Max. Hyman paid $7,000 in cash to the plaintiffs on account of the purchase, and the said bond and mortgage was for $18,000. The realty was subject to prior liens of $7,000. The transaction was in 1906, when the lands were worth $32,000. The financial depression of 1907 reduced the value to $22,000, and such is their present value and their prospective value for some time to come. There was default in the payment of the semi-annual interest on the said mortgage due in February, 1908. The plaintiffs began foreclosure proceedings in this court and made Max J. Shapiro a party. This defendant, Max J. Shapiro, who was served with process, appeared by guardian ad litem and pleaded his infancy. And the same Max J. Shapiro also brought an affirmative action to avoid the transaction on the ground of his infancy, offering to reconvey the premises and asking judgment for $5,000, which he asserted was paid from his money on account of the purchase, and also further sums of money, outlay on account of the premises in question. Both actions are pending. In this action the plaintiffs pray that Hyman be substituted for Max J. in the purchase-money bond and mortgage; that the apparent liability of Max J. be shifted to Hyman; that the title vested in Max J. be declared in trust and for the benefit of Hyman; that the various instruments be reformed; that Max J., if necessary, be directed to convey to Hyman subject to the said mortgage; that the mortgage be foreclosed and that the defendant Max J. Shapiro be barred from the prosecution of his said action or any like action, and for such other relief as is proper. The defendants demur that the complaint does not state facts sufficient to constitute a cause of action; that there are other actions pending for the same causes of action, and that causes of action have been improperly united.
The plaintiffs contracted to sell for a certain sum in cash and for a purchase-money bond and mortgage. They received the cash from Hyman Shapiro. Cash has no earmarks. If they can satisfy their mortgage by foreclosure, then they are not harmed by the fraud. I perceive no reason why the plaintiff cannot now foreclose the mortgage as against the "Max J. Shapiro" who was a mortgagor, even though he generally bears the name of Hyman Shapiro. Throughout the transaction Hyman adopted Max J. as his own given name. Hyman thus could assume the name of Max J., and if he did he cannot escape his obligation by a later disavowal. (See Matter of Snook, 2 Hilt. 566; David v. Williamsburgh City Fire Ins. Co., 83 N.Y. 269; England v. New York Publishing Co., 8 Daly, 375; Preiss v. Le Poidevin, 19 Abb. N.C. 123; Kennedy v. People, 39 N.Y. 251.) It is the identity of the individual that is regarded, not the name that he may bear or chose to assume. ( Matter of Snook, supra, 575.) If Hyman Shapiro executed the mortgage, assuming the name of Max J. Shapiro, he would none the less be bound. ( David v. Williamsburgh City Fire Ins. Co., supra; 1 Add. Cont. [1st Am. ed.], 73, and authorities cited.) The fact that there was a living person whose name was Max J. Shapiro did not make that mortgage the instrument of that person. If the name Max J. Shapiro was signed physically by another instead of by Hyman Shapiro himself, and Hyman assumed that signature as that of the name assumed by him in this transaction, and then delivered the mortgage so signed and thus executed to the mortgagee as his instrument executed in his name, it is the same as if he himself had subscribed that name. ( Manhattan Life Ins. Co. v. Alexander, 89 Hun, 449; affd., 158 N.Y. 732.) And it does not change the principle that Hyman Shapiro by accident or by design assumed in this transaction a name which was identical with that of the person who physically subscribed the name under such circumstances.
And yet I think that the plaintiffs may be heard in a court of equity on their plea of reformation in view of the character and form of the obligation. The remedy may operate indirectly to establish or to protect primary rights. (Pom. Eq. Juris. [3d ed.], §§ 171, 1376.) The same learned author in his Equitable Remedies (§ 676) says: "Where, however, the instrument does not express the true intent of the parties, owing to mistake on one side coupled with fraud or inequitable conduct on the other, relief will be freely given. The ground of the jurisdiction in this case is the fraud of the defendant, rather than the mere mistake of the plaintiff." (See, too, Welles v. Yates, 44 N.Y. 525; Kilmer v. Smith, 77 id. 226.) Mr. Pomeroy in his Equity Jurisprudence also says, citing authorities (p. 1540): "Reformation is appropriate when an agreement has been made, or a transaction has been entered into or determined upon, as intended by all the parties interested, but in reducing such agreement or transaction to writing, either through the mistake common to both parties or through the mistake of the plaintiff accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction actually made or determined upon according to the real purpose and intention of the parties." And further (p. 1543): "The jurisdiction to grant the relief of reformation may be exercised with respect to written instruments operating inter vivos, whether they are executed contracts, such as deeds of conveyance, mortgages, leases or executory agreements, such as bonds, policies of insurance, notes, bills of exchange and the like." And as to the principle, see, too, Parlin v. Stone (48 Fed. Rep. 808); Collins v. Cornwell ( 131 Ind. 20). It does not appear that any innocent person could be affected in this case. I may add that it is a familiar rule that when a court of equity once acquires jurisdiction it will be retained for full relief. Mr. Pomeroy in his Equitable Remedies goes so far as to say (§ 683): "The principle that when equity once acquires jurisdiction it will be retained for full relief is applicable, and consequently additional equitable relief, such as specific performance, foreclosure, or legal relief in damages, may be awarded in the same suit."
I think that there is not an improper joinder of causes of action. Pomeroy on Code Remedies (3d ed. § 455) lays down this rule for a test: "If the facts alleged show one primary right of the plaintiff and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to and may ask to recover," quoted in Nichols' New York Practice, page 58. Bliss in his Code Pleading (3d ed. § 112) cites the language of HAIGHT, J., in Mahler v. Schmidt (43 Hun, 512) as stating the test: "This provision of the Code is but declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation." The one primary right of the plaintiffs in this case is to have Hyman Shapiro held to his obligation, and the one primary wrong is the fraud practiced in order to avoid it. Asking for multiplicity of relief does not afford ground for demurrer against the complaint for stating more than one cause of action, for the cause alleged and the relief asked are separate matters. ( Hammond v. Cockle, 2 Hun, 495; Bliss v. Winters, 38 App. Div. 174.)
The interlocutory judgment must be affirmed, with costs.
HIRSCHBERG, P.J., WOODWARD, RICH and MILLER, JJ., concurred.
Interlocutory judgment affirmed, with costs.