[225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J.

[Jan.,

is to notify the adverse party in advance of the trial just what his adversary claims. A pleading is to be liberally construed. Technical rules relating thereto no longer prevail, but the rule does remain that a party cannot come into court asserting one cause of action and recover on another. If he could, then the pleading, instead of serving a useful purpose, by notifying the adverse party what he might expect to meet at the trial, would only mislead and deceive him. (Northam v. Dutchess County Mut. Ins. Co., 177 N. Y. 73; Reed v. McConnell, 133 N. Y. 425; Truesdell v. Sarles, 104 N. Y. 164; Southwick v. First National Bank of Memphis, 84 N. Y. 420; McClung v. Foshour, 47 Hun, 421; affd., 113 N. Y. 640.)

Once a contract has been reduced to writing and executed all prior oral negotiations are merged therein and the rights of the parties must be determined by its terms. It cannot be contradicted, qualified or destroyed by oral negotiations which induced its execution. This rule is so well recognized and firmly established that the citation of authorities is unnecessary. If the instrument as executed fails to conform to the agreement between the parties in consequence of a fraudulent misstatement as to its contents, or a mutual mistake, however induced, or the mistake of the one and the fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement. (Albany City Savings Instn. v. Burdick, 87 N. Y. 40; International Ferry Co. v. American Fidelity Co., 207 N. Y. 350.) But a reformation can only be had where an issue is formed by the pleadings for that purpose. A contract induced by fraud as to a matter material to the party defrauded is not void, but voidable. (Adams v. Gillig, 199 N. Y. 314.) It may, for that reason, be reformed. (Welles v. Yates, 44 N. Y. 525; Albany City Savings Instn. v. Burdick, supra.)

1919.]

Dissenting opinion, per MCLAUGHLIN, J.

[225 N. Y.]

I know of no authority which permits a party, after he has entered into a written agreement, to decide for himself that such agreement is void and successfully maintain an action on a prior oral agreement. If this can be done then a written contract serves no purpose whatever, since all a party has to do is to declare generally upon a contract and when the written one is produced, offer evidence that his signature thereto was procured by fraud. One who has been induced to purchase property by fraudulent representations, has, upon discovery of the fraud, three remedies, any of which he may elect to pursue: (a) Rescind the contract absolutely and sue in an action at law to recover the consideration parted with. To succeed in such action he must allege and prove that he has restored, or offered to restore, to the other party whatever may have been received by him under the contract (Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75); (b) bring an action in equity and there obtain full relief. (Allerton v. Allerton, 50 N. Y. 670.) Such action is based not upon a rescission, but for a rescission, and it is necessary for the plaintiff, in order to succeed, to offer in his complaint to return what he has received and make a tender thereof on the trial; (c) retain what he has received and bring an action at law to recover the damages sustained. Such action is based upon an affirmance of the contract and the measure of the recovery is the difference between the article sold and what it would have been according to the representations. (Vail v. Reynolds 118 N. Y. 297; Krumm v. Beach, 96 N. Y. 398.)

Certain cases are called to our attention, which it is claimed sustain the ruling of the trial judge: Wilcox v. American Tel. & Tel. Co. (176 N. Y. 115); Smith v. Ryan (191 N. Y. 452); Trambly v. Ricard (130 Mass. 259); Eldorado Jewelry Co. v. Darnell (135 Ia. 555); Lotter v. Knospe (144 Wis. 426); Biddeford Nat. Bank v. Hill (102 Me. 346), and Cummings v. Ross (90 Cal. 68). All but one of these

[225 N. Y.] Dissenting opinion, per MCLAUGHLIN, J.

[Jan.,

(the California case) fall into one of three classes: (1) Where the plaintiff's recovery is sought to be defeated by a written instrument which is set up in the answer. The legal existence of such instrument, no reply being required, is denied by the plaintiff. Hence an issue is formed as to the validity of such instrument which can be tried in the action; (2) where the action is brought upon a contract, the validity of which is denied in the answer, or (3) where releases or receipts upon their face purport to extinguish the cause of action alleged. In such case the plaintiff is permitted to prove that the release or receipt was fraudulently obtained and for that reason never had any legal effect. This is upon the theory that neither a receipt nor a release is a contract or an executory instrument. They are mere declarations or admissions in writing (Stiebel v. Grosberg, 202 N. Y. 266) and being such may be contradicted or explained.

In the California case an issue was presented by the pleadings as to the validity of the contract involved. The action was brought to foreclose a mechanic's lien for work done in the construction of a building. An issue was raised as to the performance of the work alleged to have been done under the contract described in the complaint. The answer alleged another contract, including extra work sued for by the plaintiff upon a quantum meruit. It was held that it was competent for the plaintiff, when such other contract was introduced in evidence by the defendant, to show in rebuttal that he signed it under the defendant's fraudulent representation. The defendant having alleged the existence of the other contract to defeat plaintiff's claim, and no reply being required, its validity was put in issue.

In the present case the plaintiff in his complaint did not ask for a recovery based on the breach of an oral contract made in October; on the contrary he alleged the contract was made on or about the 4th of November,

1919.]

Statement of case.

[225 N. Y.]

which turned out to be in writing. If it did not correctly represent the terms of the agreement, due to the fraudulent statement of the defendant's agent, then plaintiff's remedy was to ask to have it reformed. That could not be done under the complaint in its present form. The complaint had to be amended so as to present that issue, the trial of which would be by the court without a jury.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant in all courts to abide event.

CUDDEBACK and HOGAN, JJ., and CRANE, J. (in opinion) concur with COLLIN, J., for affirmance; HisCOCK, Ch. J., and CHASE, J., concur with MCLAUGHLIN, J., for reversal.

Judgment affirmed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ATTILIO DE SIMONE, Appellant.

erroneous

Crimes appeal non-unanimous decision of Appellate Division affirming a judgment of conviction Court of Appeals must examine record to ascertain whether there is evidence tending to support verdict of guilty evidence reason for receiving competent and admissible evidence not sufficient ground for reversal of judgment when statements made by witness admissible as explanatory of the conduct and acts of the witness.

1. Where a decision of the Appellate Division affirming a judgment convicting a defendant of murder in the second degree is not unanimous the Court of Appeals must examine the record to ascertain, as a question of law, whether there is evidence tending to support the verdict of guilty, and also to ascertain whether any alleged error, raised by an exception at the trial, has validity.

2. Where evidence is competent and admissible it is immaterial that an improper ground for receiving it was stated, and a judgment convicting a defendant of murder in the second degree will not be reversed for such alleged error.

[225 N. Y.]

66

3. Upon the trial of defendant herein a police officer who helped in the arrest of the defendant testified that, hearing a shot, he was running to the place from which the sound came and as he reached a street corner somebody in the crowd hollered, He ran over Houston Street,' " and looking he saw the defendant running and followed him, overtaking him as another officer stopped him. He found upon the ground near the defendant the pistol which was introduced in evidence. Defendant's counsel objected to the statement of the witness that somebody in the crowd hollered,' as incompetent, irrelevant and immaterial, hearsay in the absence of this defendant and not binding on the defendant." The court overruled the objection on the ground that the testimony was part of the res gesta. Held, that the testimony, although hearsay, was competent, not as of the res gesta, but as part of the relevant explanation and description of the acts of the witness, in acquiring the testimony given by him.

People v. De Simone, 181 App. Div. 840, affirmed.

(Argued October 30, 1918; decided January 7, 1919.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 1, 1918, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York rendered upon a verdict convicting the defendant of the crime of murder in the second degree.

The facts, so far as material, are stated in the opinion. Frank Moss, Isidor Wels and Caesar B. F. Barra for appellant. The court improperly admitted evidence of remarks by a stranger on the street, after the alleged homicide. (Chamberlayne on Evidence, § 2597; Bradshaw v. Commonwealth, 10 Bush [Ky.], 576; State v. McCoy, 111 Mo. 517; Campbell v. State, 30 Tex. App. 645; Bishop's New Crim. Pro. [2d ed.] § 1087; Flynn v. State, 43 Ark. 289; Fittin v. Sumner, 163 N. Y. Supp. 443; 176 App. Div. 617; Greenfield v. People, 85 N. Y. 75. People v. Decker, 143 App. Div. 590; Homer v. Everett, 91 N. Y. 641; Ex parte Kennedy, 57 S. W. Rep. 648; Wharton's Crim. Evidence [10th ed.], § 270; People v. Marendi, 213 N. Y. 600.)