
    Charles Stolts, Appellant, v. William B. Blaisdell, Respondent.
    
      Pleading—joinder of causes of action—reformation of lease — damages for breach.
    
    Appeal from an interlocutory judgment of the Supreme Court, entered in the Chautauqua county clerk’s office on the 29th day of April, 1912, and also from an order made on the 27th day of April, 1912.
    Interlocutory judgment affirmed, with costs, with leave to plaintiff to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.
   All concurred, except Foote, J., who dissented, in a memorandum; Lambert, J., not sitting.

Foote, J. (dissenting):

If two causes of action are stated in the complaint I think they are claims arising out of transactions connected with the same subject of action, within the meaning of subdivision 9 of section 484 of the Code, and so may be united in one action. Plaintiff’s claim is that he had a right to occupy defendant’s ten acres of land and raise crops thereon for the seasons of 1911 and 1912; that this was the agreement between the parties; that by mutual mistake in drafting the lease, such right was not given to him for the second season; that several months after the lease was made it was, in effect, modified by an oral agreement that three and one-half acres of this land should be occupied and cultivated for the season of 1911 by defendant for his own benefit, but that defendant should harvest his crops on this three and one-half acres and remove all' roots and rubbish therefrom early enough in the fall of 1911 to permit the plaintiff to plow that land in the fall of 1911 to prepare it for crops of the season of 1913, and that this the defendant failed to do, thereby causing plaintiff damage in respect of this three and one-half acres, in ease he was to have the use of it for the season of 1913.' Of course, plaintiff would not be damaged, unless he was to have the use of this land the following season. Plaintiff began this action on December 33, 1911. The only breach of any agreement between the parties which had then occurred was the failure of defendant to remove his crops and cleanup the three and one-half acres in time to permit plaintiff to plow it in the fall of 1911. The first year’s lease of the ten acres did not expire until February 39, 1913; hence, there had been no refusal of defendant to continue the lease for a second year in accordance with the oral agreement, as plaintiff claimed it to be. Nevertheless, plaintiff had the right to bring his action at that time to reform and correct the lease, so as to give him the two-year term, and unless he should succeed in reforming it, he could not show that he had been damaged by defendant’s failure to give him possession of the three and one-half acres in time for the fall plowing. The transaction or transactions between these parties relate to this ten acres of land. The second agreement as to the three and one-half acres modified the first agreement as to the whole. In legal effect, plaintiff’s action is to recover damages for breach of the agreement as modified, and to permit of such recovery he must necessarily have the written part of the agreement as embodied in the lease reformed, so as to give him possession of the ten acres for two years; otherwise his claim for damages would fail. Hence, it seems to me that the case is like those cited on the appellant’s brief where actions were brought to reform insurance or other contracts and at the same time to recover damages for breach of the contract as reformed. While plaintiff has drawn his complaint in form to state two causes of action, I think, in effect, it is only one, namely, damages for the breach of a contract, which contract is not correctly expressed in the writing, and which he asks to have reformed and corrected to permit the recovery that he asks. Moreover, I think that we should take notice of the fact that the season of 1913 has already passed, and when this ease comes to trial, if the lease is reformed in accordance with plaintiff’s claim, plaintiff will, no doubt, be permitted to recover his damages for the failure of the defendant to give him the use of these ten acres during the season of 1913 and that then there will be no occasion to separate damages arising from the three and one-half acres and treat that as a separate claim or separate cause of action. It will then be wholly immaterial whether defendant failed to put plaintiff in a position to plow these three and one-half acres in the fall of 1911 for the next season’s crop, as it will appear that plaintiff was deprived altogether of the use of these three and one-half acres for the season of 1912 by the defendant for other reasons. For these reasons I think the judgment appealed from should be reversed, with costs, and the demurrer overruled, with leave to the defendant to plead over on payment of the costs of the demurrer and of this appeal. _  