Opinion
March 18, 1940.
Two of the three defendants in an action for an accounting and for a money judgment appeal from an order denying their motion for the dismissal of the complaint for insufficiency as to them. Order reversed, on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Testing the complaint on the facts alleged, as distinguished from conclusions stated, it is one for rent alleged to be due and unpaid under a lease. Appellants were not parties to the lease and were not tenants of plaintiff, and they were, therefore, not liable to plaintiff for rent or for a breach of the lease in any other respect. ( President Directors of Manhattan Co. v. Nieberg, 164 Misc. 618, 620, 621, and cases there cited; Cozzens v. Am. General Engineering Co., 55 id. 393.) The facts alleged to show fraud on the part of appellants in an oral agreement relating to the lease and to the demised premises do not have that effect; but, assuming that there was fraud and that appellants participated in it as charged, plaintiff waived the fraud in a written contract which superseded the oral agreement. Furthermore, if the facts alleged constituted fraud by appellants and the fraud had not been waived, it would have related only to a breach of the lease by the tenant in respect of the rent to be paid, for which plaintiff would have no cause of action against appellants, and would not have given rise to an action in fraud by plaintiff against appellants. ( Brick v. Cohn-Hail-Marx Co., 276 N.Y. 259, 263, 264.) Lazansky, P.J., Hagarty, Adel, Taylor and Close, JJ., concur.