Frankenberg v. Perlman

Headnote

Frankenberg v. Perlman, 180 App. Div. 174 , affirmed.

’ Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart-

merit, entered November 23, 1917, which affirmed an. order of Special Term denying a motion by plaintiff for judgment in his favor upon the pleadings. The action was to compel specific performance of an agreement whereby defendant agreed to resell to the plaintiff certain stock of a corporation, “ at the face value ■ thereof.” Defendant in his answer set up a counterclaim in which he alleged that the plaintiff fraudulently represented to him that the words “face value” meant “actual or book value,” and that when the defendant signed the agreement in question, he believed that the words “ face value ” meant “ actual or book value,” as represented by the plaintiff. The defendant, therefore, asked affirmative judgment that the agreement, for the specific performance of which this action was brought, be reformed, so as to substitute the words “ actual or book value ” in-place of the words “ face value ” therein contained.

The following questions were certified: “1. Does the counterclaim contained in the amended answer herein state facts sufficient to constitute a cause of action for a reformation of the written agreement mentioned in the complaint? 2. Is the plaintiff entitled to judgment on the pleadings herein? ”