Opinion
January 18, 1971
In an action by a vendee under a contract to sell real property inter alia to recover damages for breach of the contract, the appeal is by plaintiff from an order of the Supreme Court, Nassau County, entered on or about February 9, 1970, which granted a motion by the vendors to dismiss each of plaintiff's three causes of action. Order modified by striking therefrom everything following the word "granted" and substituting therefor the following: "only with respect to the second and third causes of action in the complaint as against the defendants Larkin, Harvey Haynes, Hilbert Haynes, Charles and Finn and otherwise denied." As so modified, order affirmed, with $10 costs and disbursements to appellant against respondents Larkin et al., doing business as Great Neck Associates. Plaintiff as buyer and the partnership defendants as sellers entered into a contract on March 4, 1965 for the sale of realty. The contract and a written amendment thereto provided inter alia that plaintiff would have an option to cancel the contract if the sellers did not acquire two additional parcels of land; and the time within which the sellers were required to acquire these two parcels was fixed as on or before December 1, 1965. On February 3, 1967, plaintiff by letter exercised this option and canceled the contract. In addition, he demanded the return of $70,000 paid pursuant to the contract and in reliance thereon. Thereafter, he instituted this suit, upon three causes of action. The first cause is against the partnership defendants for breach of the contract. The second cause is against all the defendants for conspiracy to breach the contract. It is alleged therein that, in furtherance of the conspiracy, the sellers agreed to convey the realty to the defendant village for a sum in excess of that provided in plaintiff's contract. The third cause of action is against the sellers alone. Reiterated therein are the conspiracy allegations of the second cause of action, after which it is alleged that plaintiff, upon discovering the alleged conspiracy, forbore from instituting suit against the defendants; that, as consideration for said forbearance, the sellers agreed to give him at least 10 days' prior notice of any date to be set for the conveyance of the realty by the sellers to the village; and that the sellers wrongfully and fraudulently failed to give such 10-day notice. In our opinion, the second and third causes of action were properly dismissed; appellant does not contend otherwise in his briefs. However, the first cause of action should not have been dismissed. Upon the sellers' default in securing the additional realty, plaintiff had the right to cancel and rescind the contract of sale. By his letter of February 3, 1967, plaintiff effectively rescinded the contract. Nevertheless, he was entitled to sue in restitution for the moneys already paid to the sellers (5 Corbin, Contracts, § 1108; Richard v. Credit Suisse, 242 N.Y. 346). The allegations of plaintiff's complaint indicate that plaintiff was, at the very least, seeking restitution. The allegation of damage apparently included damages which were clearly in excess of the moneys he had paid to the sellers and had otherwise expended in reliance on the contract and had demanded in his letter of cancellation dated February 3, 1967. Nevertheless, "As long as the allegations taken from the complaint as a whole manifest that the plaintiff has a cause of action on which some kind of relief may be granted, it is of no moment on a paragraph 7 motion that the wrong relief was asked for" (Practice Commentaries on CPLR 3211 by Prof. David D. Siegel in McKinney's Cons. Laws of N.Y., Book 7B, §§ 3201-3400, p. 32; see O'Reilly v. Cahill, 50 Misc.2d 629, revd. on other grounds, 28 A.D.2d 527). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.