Opinion
January 22, 1915.
Gustav Lange, Jr., for the appellant.
Alexander G. Blue [ John R. Vunk with him on the brief], for the respondent.
This appeal is from an order of the Special Term that denies defendant's motion for judgment on the pleadings. The learned Special Term, although criticizing the complaint, was of opinion that it could be sustained as for fraud. The complaint takes up eight pages of the record. It cannot be approved as a form, and its defects can be pointed out without a reproduction.
The wrong asserted by the plaintiff is that the defendant did not perform its contract with the plaintiff, in that it failed to furnish an "asphalt plant" of a specified daily capacity at a specified time; that the plant furnished fell short of the specified workmanship, material and construction; that the plaintiff had made part payments therefor as required by the contract and had suffered damages by the said breaches of the defendant. If we regard the complaint as for a breach of the contract, as the plaintiff contends, it is bad in that the plaintiff does not plead his performance. His entire allegation as to this feature is that plaintiff "has fully and completely performed all the contract duties and obligations and conditions on his part to be performed and done."
If the plaintiff chose not to state the facts, then he should have pleaded that he had "duly" performed all of the conditions on his part. (Code Civ. Proc. § 533; Hilton Dodge Lumber Co. v. Sizer Co., 137 App. Div. 661; Clemens v. American Fire Ins. Co., 70 id. 435; Marcus Contracting Co., Inc., v. Weinbros Real Estate Co., 162 id. 495; Rosenthal v. Rubin, 148 id. 44; Tuttle v. Robinson, 91 Hun, 187; Brownell v. Town of Greenwich, 114 N.Y. 518; Gansevoort Bank v. Empire State Surety Co., 117 App. Div. 455.)
If the plaintiff relied upon fraud as the burden of his complaint, he could have rescinded the contract absolutely and sued on the law side of the court to recover the consideration paid, but he must "first restore, or offer to restore," the thing received, or he could have sued for rescission of the contract and in that action could have obtained full relief, but in his complaint he should have offered to restore the thing and be prepared to make tender thereof at the trial, or he could retain the article and sue on the law side of the court for damages. ( Vail v. Reynolds, 118 N.Y. 297; Heckscher v. Edenborn, 203 id. 210; Yeomans v. Bell, 151 id. 234.) He has not pursued any one of these remedies. He does not rescind save one provision of the contract; he does not sue for rescission save as to one provision of the contract. He is entirely silent as to restoration or offer of restoration. If we could regard the plaintiff as invoking the third of the remedies specified, he does not, as we have seen, plead his performance. He cannot make a patchwork complaint that embodies some and rejects others of the essentials of three separate remedies. ( Yeomans v. Bell, supra.)
The learned counsel for the respondent disavows the theory of fraud as the basis of his complaint, and says that his allegations as to fraud are directed to the validity of the clause of the contract relating to "a penalty" and are to explain or to avoid the effect of his partial payments. Upon his avowed theory, and without considering any other theory which could be adopted by him, he may possibly, upon the facts which we gather from his complaint, have a cause of action for liquidated damages under that clause of the contract which provides "a penalty of $20 for each and every day of delay." ( Mosler Safe Co. v. Maiden Lane S.D. Co., 199 N.Y. 479; Ward v. H.R.B. Co., 125 id. 230.) But his present pleading cannot be sustained upon any theory whatever.
The order is reversed, with ten dollars costs and disbursements, and the matter is remitted to the Special Term.
BURR, STAPLETON, RICH and PUTNAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term.