Opinion
June 26, 1956
Order [denying motion to dismiss complaint] unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs. The mere allegation in the complaint of a mistake upon the part of plaintiff in not demanding arbitration of the rent, as allowed by the lease, is not sufficient to enlist equity in plaintiff's behalf. Nor is any forfeiture here involved which would warrant equitable intervention to extend beyond the contract limitation the time in which plaintiff was entitled to demand arbitration. Plaintiff having conceded on the argument of the appeal that it could not frame a complaint to allege more than the "mistake" alleged in the present complaint, there is no occasion for granting leave to amend. Order [restraining appellant from collecting more than stated rent] unanimously reversed and the cross motion of plaintiff denied.
Concur — Peck, P.J., Breitel, Frank, Valente and Bergan, JJ.