
    August Zinsser, Plaintiff, v. Henry Ruppel and The Waubun Company, Defendants.
    (Supreme Court, New York Special Term,
    June, 1909.)
    Deceit — Matters of opinion. Principal and agent — Eights and liabilities of prinicpal as to third persons— Sights and liabilities depending on manner of execution of power, etc. — Form of contract to bind principal or give him rights — Contract of agent.
    A complaint in which is alleged the execution by the plaintiff of a lease to an irresponsible employee of a corporation, upon the representation of the corporation that it would be to its great disadvantage if it were made public that it had executed and obtained a lease of the premises mentioned, and in which it is further alleged that the corporation now claims and asserts that it is not bound by the lease, and that said lease is not its agreement but the agreement rf its irresponsible employee, does not allege a fraudulent or deceptive act on the part of the defendant corporation and does not state a cause of action against it.
    Action to reform a lease.
    
      Theo. Hansen, for plaintiff.
    H. H. Gibbs, for defendants.
   Greenbaum, J.

Plaintiff seeks to reform a lease of certain premises by substituting as lessee the name of the" defendant The Waubun Company in place of the defendant Buppel. Defendant Buppel demurs for insufficiency of the complaint. It is alleged that the name of the defendant Buppel, a financially irresponsible employee of the defendant The Waubun Company, was inserted in the lease, instead of The Waubun Company, the actual lessee, because of the representations of said company that it would be to the great disadvantage of the said defendant if it were made public that it had executed and obtained a lease of the premises mentioned.” It is alleged that it was mutually agreed that the said lease would be and was the lease of the defendant The Waubun Company and not that of the defendant Henry Buppel.” Plaintiff further alleges: 8. That, relying upon the said promises, statements and representations of the defendants and upon the agreement aforesaid and solely by reason thereof, and at the urgent request of the defendants, * * * and in the mistaken belief that the lease, as executed, was the lease of The Waubun Company, and being deceived and misled into this belief and into the execution of said lease by the false statements of the defendants, to the effect that the lease as so executed was the lease of said defendant The Waubun Company, this plaintiff did, on the 22d day of July, 1904, execute and deliver to the defendant The Waubun Company a certain lease under seal identical with the aforementioned one as to its covenants and conditions, but with the name Henry Buppel inserted in the place of The Waubun Company, a copy of which lease is annexed hereto and marked Exhibit A and made a part of this complaint. 9. That at the time of the execution it was the intention of both the said plaintiff and the defendants that the said lease should be the lease of the defendant The Waubun Company and the lease of no other person, although on the face of said lease the name Henry Buppel did appear as tenant without any description whatever.” There is no allegation of the falsity of the statement alleged to have been made by the defendant company that it was to its disadvantage ” to have the fact of its having executed the lease made public. The only alleged “ false statement ” is that the lease as executed was to be deemed the lease of The Waubun Company, an allegation which can only he predicated upon a further allegation that the defendants now claim and assert that The Waubun Company is not bound by the said lease, and that said lease is not its agreement, but is the agreement of the defendant Henry Ruppel.” Equity may grant relief where there is a mistake of law on one side and either positive fraud on the other, or inequitable, unfair and deceptive conduct which tends to confirm the mistake and conceal the truth. Haviland v. Willets, 141 N. Y. 38, 50. Even if we may indulge in the somewhat violent supposition that plaintiff believed that.a lease to Ruppel bound The Waubun Company, it does not appear in what respect The Waubun Company perpetrated any fraud or was guilty of any inequitable, unfair or deceptive conduct which induced the making of the lease in the name of Ruppel. The fact that several years after its execution the defendants deny that Ruppel acted as the agent of The Waubun Company in respect to the lease and that the lease was not intended to be made in the name of The Waubun Company is not an allegation of a fraudulent or deceptive act on the part of defendants. The covenants of a lease or deed “ can only be enforced against the party who upon the face of the instrument is the covenantor, although it appears by extrinsic proof that he acted as the agent for another.” Kiersted v. Orange & A. R. R. Co., 69 N. Y. 343, 345. Plaintiff’s alleged mistake of the law will not of itself entitle him to relief. Demurrer will be sustained. As two previous demurrers to the original and first amended complaints have beon sustained, and as it is not apparent how justice will be subserved by granting leave to serve a third amended complaint, the demurrer will be sustained, with costs, and without leave further to amend the complaint.

Demurrer sustained.  