
    Cohn-Baer-Myers & Aronson Company, Appellant, v. Realty Transfer Company and Mary J. Cunningham, Respondents.
    First Department,
    January 11, 1907.
    Pleading — complaint against several defendants asking alternative relief— failure.to state cause of action against either defendant.
    Neither at common law nor under the Code of Civil Procedure can a plaintiff join two defendants upon the theory that he has a right to relief against one or the other of them. .
    If, however, t^e complaint alleges facts which show that he is entitled to relief, legal or equitable, against one of the defendants joined,-the complaint will be sustained as against him.
    But when a complaint against two defendants asking alternative relief does not state a cause of action against either, the complaint should be dismissed.
    While tender may not be a prerequisite to an action in equity, yet, where a party entitled to an assignment or conveyance of property upon the payment of money goes into court to enforce that right, the complaint must make an offer to pay 'the amount.
    A complaint alleged in substance that the plaintiff having a contract to purchase lands assigned the same to a defendant corporation, which paid the plaintiff a part of a bonus therefor under an agreement whereby, if the assignee should fail to acquire title without fault on its part, the contract should be reassigned and the bonus repaid by the plaintiff. The assignee did not acquire title to the property, and the plaintiff joined the assignee and the vendor as parties defendant, asking as alternative relief: (1) That the marketability of the title be adjudged and whether the failure of the assignee to take title was its fault. (3) That if the title be marketable and the assignee in fault that the vendor and assignee be decreed to perform and the assignee be adjudged liable for the • balance of the bonus. ' (3) That if the title be unmarketable the assignment and contract of sale be canceled, etc.
    No facts were alleged showing that the failure of the assignee to take_ title was due to its fault, and there was no demand for a reassignment or offer to pay the portion of the bonus received,
    
      Held, that the-complaint failed to state a cause of action against either defendant; That the plaintiff could not have the benefit of an allegation by the assignee that the vendor could not convey a marketable title, which allegation was denied by the plaintiff’s reply.
    
      A. plaintiff cannot sustain a cause of action upon an allegation in the answer of a defendant, which he specifically denies by reply. _
    Patterson, P. -J., and Laughlin, J., dissented in part, with opinion.
    Appeal by the plaintiff, the Cohn-Baer-Myers & Aronson Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 31st day of March, 1906, upon the decision of the court, rendered -after a-trial at, the New York Special Terrn, dismissing the plaintiff’s amended complaint. •
    
      Edward W. & J'ólmstón, for the appellant.
    
      Benjamin JF. Oardozo, for the respondent Realty Transfer Company.
    
      Daniel Daly, for the respondent Cunningham.
   Ingraham, J.:

I concur with Mr. Justice Laughlin in the opinion that this action cannot he maintained upon the plaintiff’s theory of alternative relief as such an action is only justified where, on ■ the. facts stated, a plaintiff would be entitled to the alternative relief demanded against the same defendant or defendants.- As I understand it, neither at common- law nor under the Code of Civil Procedure can a- plaintiff join two defendants upon a claim that he has a right to relief against one or the other of said defendants. (Clark v. Lord Rivers, L. R. 5 Eq. Cas. 91.) If, however, the complaint alleges facts from which there follows the legal conclusion that the plaintiff is entitled to relief against a defendant named, the complaint, can he sustained against the defendant against whom the plaintiff is entitled to relief, either legal or equitable. But the difficulty with this complaint, is that-no facts are alleged which show that the plaintiff is entitled to relief against either defendant. As against the defendant Cunningham there is no allegation to show that the plaintiff ,or its assignee would be entitled to a decree for specific performance or that there was a breach of his contract to convey. Bor does the complaint allege facts from which the legal conclusion that the plaintiff is entitled to any relief against the defendant Bealty Transfer Company would follow, as it is not alleged that the failure of the Bealty Company to obtain title to the property covered by the contract between the plaintiff and defendant Cunningham Avas or was not the fault of the Bealty Company. If the Bealty Company, without justification refused to take title the plaintiff would have an action at Irav to recover its damages as for a breach of a contract, but to sustain such a cause of action a breach must be alleged.

The assignment by the plaintiff to the Bealty Company provides that should the Bealty Transfer Company fail to obtain title to the aforesaid premises in accordance with the aforesaid agreement, Avithout fault on the part of the said Bealty Transfer Company, then this assignment shall be canceled and annulled, and any interest or rights passing hereunder to said Bealty Transfer Company shall be reassigned and retransferred to ” the plaintiff; and it was upon this contingency that the plaintiff was to return the $4,000 paid on the execution of the contract to the Bealty Company. The plaintiff alleges no facts that would justify a judgment for a reassignment of this contract by the Bealty Transfer Company or justify a specific performance of that agreement, as it fails to allege that the Bealty Transfer Company failed to obtain title to the premises without fault on its part. It is quite clear that the complaint was not framed upon any such theory, as no demand for such reassignment was made, and there is no offer to pay the $4,000, nor is it tendered by the complaint. While it may be that a tender before the commencement of the action is not essential to maintain an action in equity, when a party entitled.to an assignment or conveyance of property upon the pay-merit of a sum of money comes into court to enforce that right the •complaint must at least .offer to pay the amount payable upon the transfer asked for:

Recognizing the liberal, rule of pleading prevalent in this State to which Mr. Justice Laughlin calls attention, I still think that to entitle' the plaintiff to relief either at law or in equity, the comolaint must state.facts from which the legal conclusion follows that the plaintiff is entitled to some -relief, and the complaint in this ease failing to state such facts the action could not be maintained.

The allegation in the answer of the defendant Realty Company which in substance alleges that the defendant Cunningham could not convey marketable title to the property contracted to be con- ’ veyed is an allegation made as a basis' for affirmative relief against the plaintiff by the defendant Realty Company, , and the plaintiff, by the reply, denied this allegation. The plaintiff c'annot sustain a cause of action upon an allegation in an answer of a defendant which he specifically denied by the reply. ' J. .think the condition of the pleadings at the trial justified the court in. dismissing the complaint as against both defendants.

JJlie judgment-appealed from should he affirmed, with costs.

. Clarke and Houghton, JJ., concurred'; Patterson, P. J., and . Laughlin, J., dissented in part.

Laughlin, J. (dissenting, in part):

The complaint was dismissed on motion of defendants separately - made, on the pleadings and opening of counsel for plaintiff at the commencement of the. trial, on the ground that it fails to state facts sufficient to constitute a cause of action of which a court of equity has jurisdiction.

The plaintiff and the defendant company are1 domestic corporations. The defendant Cunningham duly contracted, in writing, to sell and convey to the plaintiff certain premises, therein. described, 'situate in the borough of Manhattan in the city of Hew York, and bounded, :só far as material to this case, northerly by One Hundred and Forty-first street, easterly by the former, northwesterly line of Bloomingdále road and the northwesterly line of Hamilton place, . and southerly by One Hundred and Fortieth' street. The easterly boundary of the. premises so contracted to be conveyed was specified in the contract to be the northwesterly line of Hamilton place and the northwesterly line of Bloomingdale road, as it formerly existed. The contract, after the description of the main parcel by metes and bounds, contains the following provision: “ Together with all the right, title and interest of said party of the first part, of, in and to the land formerly included in said Bloomingdale Road and lying between the northwesterly line thereof and the northwesterly line of Hamilton Place, and immediately adjoining said above-described premises.” The plaintiff alleges that this constituted a representation and warranty that the vendor had an easement of light, air and access in and to the parcel lastly-herein described. The plaintiff, for a bonus or advance of $9,000, $4,000 of which was paid in cash and $5,000 was to be paid when title passed, by an instrument in writing, duly assigned the contract to the defendant company, and in the assignment requested and directed the vendor to execute the deed to the defendant company and covenanted that if so required by the vendor it would execute the bond and mortgage which -it had agreed to execute to her. The assignee of the contract, in substance, agreed to perform the same for the assignor. The complaint shows that it was expressly agreed that if the assignee, without fault on its part, should fail to acquire title under the contract, the assignment should be cancelled and annulled", and any interests or rights passing under the said agreement ” between the plaintiff and the defendant company “ should be reassigned and retransferred to this plaintiff, and simultaneously therewith this plaintiff should return and refund to ” said Realty Transfer Company the sum of $4,000 paid by it to plaintiff thereunder, and should also pay to it the reasonable charge for searching the title and necessary disbursements, or else transfer to it the right to collect the same from the vendor; that at the place prescribed in the contract between the vendor and vendee for performance thereof, and at a time to which performance had been postponed by their consent and the consent of the assignee, the vendor tendered to the assignee a deed of the premises and presented to it three bonds and mortgages, as' prescribed in the contract, and requested the execution thereof by it, but that the assignee tendered the balance of the purchase price payable in cash and rejected the title upon grounds, in substance, omitting those waived by it, as follows: (1) That the vendor had not of record or otherwise an easement of light, air and access-in and to said strip of land lying to the east alleged to have been formerly part of Bloomingdale road, and that her representation in the contract that she had was untrue; (2) that the premises were subject to a restrictive covenant prohibiting the-erection or Use of a steam engine.in any house thereon other than a ■ private dwelling, hotel"or apartment house, and (3)-are subject to covenants contained in liber 1058 of Conveyances at page '452,. and. restrictive covenants, other than those specified in the contract, and (4) that the deed tendered was not in compliance^ with the contract in that it did not contain .the representations .'as to .the easement of- light; air and access provided for in the contract. The plaintiff' further alleges that thereupon it employed the Lawyers’ Title Insurance and . Trust Company, a domestic corporation engaged in examining and insuring titles, to examine the title, and it reported to plaintiff: in substance that the title was objectionable upon all of said grounds upon -which it was rejected by the defendant company, arid that it would not insure the title; that plaintiff was also advised by counsel that said objections to the title “ are of such gravity and weight as to render it extremely doubtful whether the title. to said premises is marketable or unmarketable, and that it would, not be safe or proper for this plaintiff to take title to said premises without the ■ said objections having bpen passed upon by some court of" competent jurisdiction ; ” that plaintiff relied upon the act of its assignee in rejecting the title, and thereafter itself rejected the title upon the same grounds. The plaintiff further shows the amount it has. necessarily expended in having the title examined and that it does: not know what expenses its assignee has incurred for the like purpose; and the value of the.premises at all times between the date of the contract and the rejection of the title by the assignee. The. plain- - tiff further alleges that it is finable to determine whether the ina-' ■ bility to obtain title was without the fault of its assignee and that plaintiff will be remediless in the premises, or will be put to á multiplicity of actions unless the court exercises its equitable jurisdiction and decides whether, said objections to the title .were good or. bad, and whether said title is marketable or unmarketable.

The substance of the prayer for relief is (1) that the. marketability of the title be adjudged and that it be adjudged whether the inability of the assignee to obtain title was without its own fault; (2) that if the title be marketable and the assignee was at fault in rejecting it, the vendor and assignee be decreed to perform and that the latter be adjudged liable to plaintiff for $9,000, the profit' it was to receive, together with interest thereon and its expenses incurred in the examination of the title, and in the event of the failure of the assignee to perform for plaintiff according to its agreement, the plaintiff have judgment against it for the further amount of plaintiff’s liability to the vendor; (3) that if the title be unmarketable, the assignment of the contract of sale be canceled and it be decreed that the assignee retransfer and reassign to plaintiff any interest or rights acquired thereunder upon payment by plaintiff of the $4,000 paid to apply thereon and of the reasonable expenses incurred by the assignee, and that the plaintiff recover of his vendor $4,000, the amount paid by him under the contract to apply on the purchase price, and the further sum of $9,000, that being the amount of profit lost by plaintiff on his contract with the Realty Company, and also the costs and expenses incurred by plaintiff and by its assignee in examining and passing upon the title, and that the aggregate of the amounts for which plaintiff demands judgment against the vendor- be made a charge and lien upon the property.

The answer of the defendant Cunningham, after admitting most of the material allegations of the complaint and denying those not admitted, sets up as a separate defense, alleging 'the conclusions of fact, that she duly tendered full performance on her part both to the assignee and later on to plaintiff, which tenders were refused, and she demands a dismissal of the complaint. The answer off the defendant company 'put in issue certain allegations of the complaint, admitted that the company rejected the title as alleged; alleges that it tendered to plaintiff and to the vendor all money that it was required to tender under the contracts, and set up two counterclaims, in one of which it alleges that it was induced to accept the assignment of the contract by false representations, and in the other it alleged that the title to the premises was unmarketable for the réasons upon the grounds stated-in its objections thereto, which have already set forth, for which reason neither the vendor nor vendee was able to carry out the contract, and that the rejection of the title was justified, and it prayed for judgment dismissing the amended complaint, annulling the assignment of the contract,, adjudging that it Was. justified in rejecting the title and awarding it judgment.against the plaintiff for the amount paid on the contract, and damages, besides costs. ■ • - ' ■

Counsel for the plaintiff, in his opening and in the discussion following the motion for a dismissal .of the.complaint, stated, in substance, that the parcel of land which the vendor agreed to quitclaim and with respect to which the plaintiff claims she represented and •warranted that she had an easement of light, air and access,, consisted of a triangular-piece bounded northerly by the southerly line of One Hundred and Forty-first street about three and one-half' feet; bounded easterly by the northwesterly line of Hamilton place and westerly by theformernorthwesterlyline of Bloomingdale.road, and terminating southerly about, the middle of the block where the easterly a.nd westerly boundary lines intersect. On the motion to. dismiss the complaint it was pointed out that the plaintiff, according to the allegations of. its complaint, had not made a decision as to whether its vendor or its assignee was at fault, and that,, therefore, it had not alleged a cause of action against either. Ho motion was made to amend the complaint. • The .learned counsel for the appellant draws attention to the rule that the objection that a suit in equity will not lie and that the plaintiff- has an adequate remedy at-law, must be taken by-answer, which was not done in this case.. The dismissal of the complaint, however, does not rest upon the ground that the plaintiff has an adequate remedy at law or that a court of equity has not -jurisdiction of tlm subject-matter of the action,. The dismissal was urged and is sought to be sustained upon-the ground that, examined in the light" that the trial court was called upon • to view the complaint when each defendant moved separately for a dismissal upon the ground that it did not state a cause of action; it is found insufficient. .' The learned counsel for the appellant concedes that if Iiis cliént had- not assigned the contract it would be obliged to take a definite stand and in order to recover back the money paid to the vendor, it. would be- obliged to allege and prove that the title tendered was unmarketable, and if it failed it could not now having rejected the title obtain a specific performance, from its vendor, and such seems to be the law -based upon principle and authority (Steinhardt v. Baker, 163 N. Y. 411), but he contends that the situation is changed owing to the assignment of the contract and the action taken by the assignee thereof. The assignment of the contract,- of course, cannot enlarge the rights of the plaintiff as against its vendor! Since the plaintiff cannot, as against the vendor, owing to its refusal to take title, have a decree for specific performance even though the title be good, it ' is difficult to discern what relief, if any, may be afforded the plaintiff in this action against-the vendor.' It could maintain an action against the vendor to cancel the contract and recover back the purchase price and the reasonable expenses of examining the title if it owned the contract and alleged a breach (Bruner v. Meigs, 64 N. Y. 506, 515), which, however, it does not. However, if a good cause of action in,equity is stated against either defendant, the dismissal of the complaint in favor of both cannot be sustained. Ao question of improper joinder of parties defendant was presented by the motions upon which the complaint was dismissed, nor could such objection be taken even by demurrer, as it does not concern one defendant if a good cause of action is stated against him-, that another -defendant has been joined against whom, no cause of action is set forth. (Crosby v. Berger, 4 Edw. Ch. 210; New York & New Haven R. R. Co. v. Schuyler, 17 N. Y. 592; McIntosh v. Ensign, 28 id. 169.) It remains, therefore, to be seen whether a cause of action is shown against the defendant company, and if so, whether the vendor is a necessary or proper party thereto. It' is quite clear that the plaintiff does not allege whether the title was marketable or not, and it is claimed by the learned counsel for the respondents that the plaintiff does not even allege the- essential facts upon which its marketability depends. Under the liberal rule for the construction of pleadings that obtains in this jurisdiction, arid which is still more liberal when the question instead of being raised by demurrer is presented by motion to dismiss on the trial (Sanders v. Soutter, 126 N. Y. 195 ; Kain v. Larkin, 141 id. 150), A am of opinion that the complaint was sufficient to admit proof upon the trial to show that the facts stated in the objections to the title were true. If this be doubtful, however, on the complaint standing alone, the objection is .removed by the answer of the defendant com-, pany which specifically avers that the facts stated in the objections were true and that the title. Was defective, and prays for an adjudication thereon canceling and annulling the contract, and that it was justified in rejecting the title, and for the relief to which it would be entitled under the contract upon that theory. (Jacquelin v. Morning Journal Assn., 39 App. Div. 515 ; Miller v. White, 4 Hun, 62; Cohu v. Husson, 113 N. Y. 662.) It is further objected that the plaintiff must' decide for itself before suing whether the title was good or bad, and that it cannot come into a court of equity in effect for advice as to whether the title was marketable: The

learned counsel for the appellant does not contend that his client is entitled to the advice or direction of the court as is a trustee in certain cases,, and he disclaims that the action was brought or presented on the theory that the advice of the court is sought upon any ground. His claim is that facts are alleged- in the complaint showing that' the plaintiff is entitled to some relief, but that the form and nature of the relief depends upon the decision of the court as to Whether the title was marketable and properly rejected, or unmarketable and improperly rejected. If the title was marketable, he contends that as against the defendant company his client is: entitled to specific, performance of the contract as between them at least, even though on account of the refusal of both to take the title, specific performance-may not be decreed as against'the vendor, and that, if the title be not marketable, his client is entitled to have the assignment canceled and the contract reassigned to it by the defendant company, so that .it may be in a position to perform if performance be demanded by the vendor and to recover the purchase money paid and the expenses, of examining the title in any event.

In either event, thérefore, he claims that plaintiff is entitled to equitable relief against the defendant Company, but being in doubt as to; the law of the marketability of the title which will control the' form and nature of the relief, he presents'the case in a double aspect Without alleging which is right and prays for relief, in the alternative, but founded on the same facts and, therefore, not inconsistent, depending only on whether it is held that the title was marketable ,or unmarketable. This form of pleading in equity, prevailed long" before the Code and is still sanctioned. [McCosker v. Brady, 1 Barb. Ch. 329 ; affd., sub nom. Brady v. McCosker, 1 N. Y. 214; Belmont v. O'Brien, 12 id. 400 ; Lloyd v. Brewster, 4 Paige, 537; Oolton v. Ross, 2 id. 396 ; Evans v. Burton, 5 N. Y. St. Repr. 216 ; Schiffer v. Lauterbach, 7 App. Div. 231; Matter of Patterson, 79 Hun, 377; Redmond v. Dana, 3 Bosw. 615; 1 Dan. Ch. Pr. [6th Am. ed.] 384, 385 ; Hardin v. Boyd, 113 U. S. 756; Black v. Henry G. Allen Co., 42 Fed. Rep. 618; Halsey v. Goddard, 86 id. 25.) But the alternative relief must be demanded against the same defendant or defendants. (Clark v. Lord Rivers, L. R. 5 Eq. Cas. 97.) In many cases, pleadings in equity presenting the case in a double aspect and demanding alternative relief have been sustained where if the plaintiff failed to establish certain facts alleged which would entitle him to equitable relief, he claimed in the alternative other equitable relief upon other facts alleged. (Connecticut Mut. Life Ins. Co. v. Cornwell, 72 Hun, 199 ; Redmond v. Dana, supra ; Kilgour v. New Orleans Gaslight Co., 2 Woods [U. S.], 144; Bagot v. Easton, L. R. 6 Ch. Div. 1; Davies v. Otty, 2 De G., J. & S. 238; Caldwell v. King, 76 Ala. 149; Fisher v. Moog, 39 Fed. Rep. 665; Rockwell v. Morgan, 13 N. J. Eq. 384.) This court has ' recently held that a complaint is good which demands alternative relief, even on inconsistent facts, on plaintiff’s failure or inability to sustain one theory, in which event he demands relief upon the other theory. (Hasberg v. Moses, 81 App. Div. 199, and cases cited.) ‘We agree with the contention ■ of the learned counsel for the respondents that the plaintiff does not show ignorance of material facts specially or peculiarly known to the defendants, which would, under the former equity practice, entitle it to a discovery of the facts (Lloyd v. Brewster, supra ; Wilkinson v. Dobbie, 12 Blatchf. [U. S.] 298), even if that form of complaint would in any case be now permissible under our Code of Civil Procedure, which is doubtful, since it is required that the complaint- shall state the material facts, and a remedy by an exanrination of the defendant to enable the plaintiff to frame a complaint has been provided as a substitute for the old bill of discovery. The plaintiff, however, as already stated, claims to have alleged all of the material facts upon which the marketability of the title depends. If, however, the title was marketable and the defendant company was at ■ fault in rejecting it, it may be doubtful whether the plaintiff has a cause of action against the defendant company in equity for' specific performance, since he would 'only be entitled to a judgment for damages for breach of contract. Upon this theory of the case I doubt whether the plaintiff’s vendor could be brought into the action and compelled to litigate in this action her claim for damages or. her right, if she should see fit to assert the right, to a specific performance of the contract as against the plaintiff. .On the other hand, if the title was not marketable, the plaintiff would be entitled as against the defendant company to a cancellation and reassignment of the contract. The contract contemplated a'formal cancellation and reassignment in’ the event that the assignee should, without its own fault, be unable to obtain title. This, therefore,, was the agreement of the parties and it may be essential to the plaintiff’s right to recover of the vendor the down payment and expenses of examining the title, for those rights have passed to the defendant company by the assignment, and moreover plaintiff is entitled to be in’ a position to perform should its vendor assert the marketability of the title and demand performance. It may well be that a court of'equity would not take jurisdiction merely to cancel and annul the assignment (Globe Mutual Life Ins. Co. v. Reals, 79 N. Y. 202; Town of Springport v. Teutonia Savings Bank, 75 id. 397); but here special facts and circumstances exist which render it proper that the defendant company should be compelled to execute and deliver a reassignment of the contract in accordance with the express agreement of the parties and this it has jurisdiction to do. (McHenry v. Hazard, 45 N. Y. 580; Hamilton v. Cummings, 1 Johns. Ch. 516; Metropolitan El. R. R. Co. v. Manhattan El R. R. Co., 11 Daly, 373.) The defendant company, in its answer, alleges that it has demanded the amount for which, upon this theory of the case, the plaintiff is liable to it, and that the plaintiff has refused to pay the same. These allegations are denied in the reply. That, however, if true would only indicate that perhaps the plaintiff might have obtained a reassignment without going into court, but does not bar its right, for, under the contract, the plaintiff was under no obligation to make the payment until the defendant company reassigned the .contract. The failure of the plaintiff to demand a reassignment of the contract before bringing the action may be aground for refraining from allowing it costs, but it is not a bar to equitable relief. I am of opinion, therefore, that upon the theory of the complaint which is fairly to be inferred from the allegations and which is supported and sustained by the answer of the defendant company, the suit cah be maintained in equity against the defendant company for a cancellation and reassignment of the contract. Inasmuch as the vendor' in her answer makes no demand for specific performance and her only prayer for relief was for a dismissal of the complaint, 1 am of opinion that the complaint was properly dismissed as against her for the reason that she was not a necessary party to the action as between the plaintiff and the defendant company upon the only theory upon which I think the complaint can be sustained, and she cannot be compelled in this action to litigate her right to damages against the plaintiff under her contract with .it.

It follows, therefore, tliat the judgment, should he affirmed, with costs, as to the respondent Cunningham, and reversed and a new trial ordered, with costs to abide the event as t'o the defendant company. , ' :

Patterson, J., concurred.

J udgment affirmed, with costs. Order Sled.  