
    Otto M. Eidlitz and Robert James Eidlitz, Appellants, v. Manhattan Wrecking and Contracting Company, Respondent.
    First Department,
    December 4, 1914.
    Contract — reformation — mistake — adequate remedy at law — laches.
    A contractor who entered into an agreement with a wrecking company to demolish certain buildings and clear the premises, which company, after getting possession of all the buildings intended to be covered by the contract, removed all the materials of value therein, and refused to complete the contract upon the ground that they did not get possession of certain houses which they knew had been included in the contract by mistake, has not an adequate remedy at law, and may sue in equity for a reformation of the contract and for damages occasioned by the alleged breach thereof.
    Delay by the plaintiff in bringing the suit "will not defeat a recovery where the Statute of Limitations has not run, and the defendant has not been caused to change its position to its damage.
    Appeal by the plaintiffs, Otto M. Eidlitz and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of March, 1914, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.
    The suit was brought for the reformation of a written contract.
    
      Frederick Hulse of counsel [Eidlitz & Hulse, attorneys], for the appellants.
    
      Moses Feltenstein of counsel [Feltenstein & Rosenstein, attorneys], for the respondent.
   Clarke, J::

The learned Special Term in its decision found, inter alia, the following facts:

The plaintiffs doing business under the firm name and style of Marc Eidlitz & Son, on May 17, 1911, entered into a written contract with the New York Society for the Belief of Buptured and Crippled for the erection of a hospital on the site of the buildings then known as 304-322 East Forty-third street, inclusive, and 303-325 East Forty-second street, inclusive, in the borough of Manhattan, city of New York. Theretofore and on May eleventh the defendant made application to the' society asking to whom defendant might submit estimates for the demolition of the buildings on said site. On the twenty-seventh of May plaintiffs received from the society this letter of inquiry of the defendant, and on the same day they wrote to the defendant: “Enclosed please find proposal form. Will you please submit your estimate thereon, and let us have same at this office not later than Monday afternoon next.” In the envelope with said letter plaintiffs mailed three inclosures: A diagram showing the site of proposed hospital and containing the numbers of the houses to be wrecked, which on Forty-third street ran from 304 to 322, inclusive; a typewritten blank proposal on which the language was: “We hereby agree to furnish * * * all labor and materials * * * necessary to take down and remove from the premises all portions of the buildings, including fences and outhouses in back yard and the cutting down and removal of trees, now situated at 304 to 332 East 43rd Street inclusive and 303 to 325 East 42nd Street inclusive,” and also an envelope addressed to the plaintiffs, which letter and inclosures the defendant received.

On the 11th day of May, 1911, the defendant’s president, Levenson, read an article in the New York Times regarding the site of the proposed hospital which said: “Complete site for new Hospital. The Society for Ruptured and Crippled Children has completed the site for its proposed building to replace the old Lexington Avenue property by the purchase of 310 East 43rd Street and 303 East 42nd Street. * * * The hospital trustees have accumulated a frontage of 200 feet on 42nd street and 170 feet on 43rd street just east of Second Avenue, which is to be improved for a group of buildings.” Immediately after receiving the letter with the three inclosures Levenson visited the site and inspected the houses standing thereon and found all of the houses, namely, 303-325 East Forty-second street, inclusive, and 304-322 East Forty-third street, inclusive, vacant, but found the houses 324-332 East Forty-third street, inclusive, fully occupied. The court further found that on or about the 1st day of January, 1911 (which is an evident mistake for the first day of June), plaintiffs and defendant agreed upon the terms of a contract whereby defendant agreed to well and sufficiently perform and finish demolition and removal of all rubbish occasioned thereby at the site to be used as the building of the society known as 304-322 East Forty-third street, inclusive, and 303-325 East Forty-second street, inclusive; said work to be done within thirty days after possession shall be given to defendant, and defendant was to pay plaintiffs for the privilege of demolishing said buildings and using the contents thereof $365. After the aforesaid terms had been agreed upon plaintiffs stated that they would have the contract drafted, which contract was to express their agreement and intentions as hereinbefore set forth; that they did undertake to do so and the said instrument was on June first executed by both parties and is Exhibit 9. This agreement described the work generally as “ all demolition and removal of rubbish occasioned thereby, as per attached proposal for and at the building for the New York Society for the Belief of the Buptured and Crippled, 303 to 325 East 42nd St.” At the time of the execution by the parties of Exhibit 9, the proposal, Exhibit 8, was also attached to Exhibit 9. In the proposal the numbers of the houses on East Forty-third street were incorrectly stated and should have been 304-322 instead of 304-332; that between the second of June and the sixteenth of June the defendant removed all the junk, fixtures and other materials of value from the buildings 304^322 East Forty-third street and 303-325 East Forty-second street; that the plaintiffs refusing to deliver to the defendant the possession of the five houses 324-332 East Forty-third street the defendant ceased work after having demanded possession of said houses; that on June sixteenth the defendant abandoned the work it had agreed to do and neglected and refused to complete the work; that thereafter the plaintiffs were compelled to and did complete the work which the defendant had agreed to do; that the plaintiffs have duly performed each and every the terms and conditions of said agreement on their part to be performed.

On the 14th of October, 1911, defendant began an action in the City Court of the City of New York to recover $5,000 damages for the breach of said contract, and on November third, the plaintiffs here, the defendants there, interposed an answer setting up a separate defense that the buildings 324-332 East Forty-third street were included in said contract by mistake and that there had been a waiver of the provisions of the contract, including said houses, and setting up by way of counterclaim the same facts, and after alleging the abandonment of the work on said contract demanded an affirmative judgment against the plaintiff for $2,300. That case was tried and a judgment entered for the plaintiff on June 22, 1912, which on appeal to the Appellate Term was reversed. Thereafter the defendants there, the plaintiffs here, served an amended answer, and subsequently the case was removed to the Supreme Court, and on October 16, 1913, it came on for trial, and at the close of plaintiff’s evidence the complaint was dismissed.

On October 28> 1913, the plaintiffs commenced this action to reform the contract and for judgment for damages occasioned by the alleged breach of the defendant.

Notwithstanding the facts as found by the learned court clearly established the mistake in the inclusion of the buildings Nos. 324-332, and warrant the reformation of the contract, the complaint was dismissed, the conclusions of law being:

“ 1. That the plaintiffs had and have a complete and adequate remedy at law.
“ 2. That the plaintiffs are guilty of such laches in commencing this action about October 28, 1913, that they are precluded from maintaining this action.”

I am unable to perceive how the plaintiffs had and have a complete and adequate remedy at law. What they demand is damages for the alleged breach of its contract by the defendant, who, having got into possession of all the buildings intended to be covered by the contract, ripped out all material that was of any value to them and then refused to complete, alleging as a reason that they did not get the five buildings which they thoroughly well knew were not included in the site of the new hospital and within their contract. The mistake being proved might have been a defense in the action brought by the defendant for the alleged breach on plaintiffs’ part in not putting it into possession of the extra buildings, but how the present plaintiffs could recover damages in an action at law, the contract remaining unchanged, I fail to see. I think they were required to go into equity for a reformation of the Contract. I am also unable to perceive such laches on their part as will defeat a recovery. The Statute of Limitations has not run, and the defendant has not been caused to change its position to its hurt by the delay in bringing the action.

In Andrews v. Gillespie (47 N. Y. 487) the court said: “The correction of mistakes in written instruments occurring by accident, fraud or otherwise, has been one of the acknowledged branches of equity jurisdiction from the earliest history of the court, and the party injured by the mistake has a right to demand its correction upon furnishing satisfactory proof that it has been made. (Gillespie and Wife v. Moon, 2 Johns. Ch. 585). In this case Chancellor Kent, with his usual ability, states the doctrine and the principles upon which it rests, and reviews many of the cases which had then been determined, and shows that delay in commencing proceedings will not alone prevent the granting of relief. In this case, a mistake in a deed was corrected after the lapse of fourteen years, there then being no statute barring the action if not commenced within that period. This, and the cases cited,

• shows that lapse of time, in the absence of such statute, will not prevent the granting of the relief.”

In Bidwell v. Astor Mutual Ins. Co. (16 N. Y. 263) the court said: “There is no rule of law which fixes the period within which a man may discover that a writing does not express the contract which he supposed it to contain, and which bars him of relief for delay in asserting his rights short of the period fixed by the statute of limitations. ”

In Galliher v. Cadwell (145 U. S. 368) Mr. Justice Brown said: “ The cases are many in which this defense [laches] has been invoked and considered. It is true that by reason of their differences of fact, no one case becomes an exact precedent for another, yet a uniform principle pervades them all. They proceed on the assumption that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that because of the change in condition or relations during this period of delay, it would be an injustice to the latter to permit him to now assert them. * * * They all proceed upon the theory that laches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties. ”

To the same effect Penn Mutual Life Insurance Co. v. Austin (168 U. S. 685).

In Cox v. Stokes (156 N. Y. 491, 511) Judge Vann said: ££ Whether the equitable doctrine of laches as distinguished from the Statute of Limitations now exists in this State is open to serious doubt.” And this was repeated by Judge Gray in Treadwell v. Clark (190 N. Y. 51, 60).

The defendant knew from the time the mistake was discovered down to the very time of the beginning of this action precisely what plaintiffs’ claim was and in that respect the situation is similar to that in Boardman v. Lake Shore & Michigan Southern R. Co. (84 N. Y. 157). The defendant has not changed its position in any respect by reason of the delay in commencing this suit; on the contrary it was engaged in actual litigation in regard to the same contract and knew throughout the whole conduct of that litigation the plaintiffs’claim. This action was commenced within five days after the dismissal of the complaint in that case.

The dismissal of the complaint in the case at bar was erroneous, but as no evidence was taken upon the question of damages we are not in a position to direct the final judgment to which plaintiff is entitled. Therefore, the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice. 
      
       See Manhattan Wrecking & Contracting Co. v. Eidlitz (78 Misc. Rep. . 396).— [Rep.
     