Treichler v. Iroquois Gas Corp. 24 A.D.2d 835

Judgment unanimously modified in accordance with the memorandum and as so modified affirmed, without costs of this appeal to either party. Memorandum: The complaint was primarily in rescission with an incidental prayer for damages. The evidence was closed without any proof of damages, but after plaintiffs’ attorney had requested that plaintiffs be permitted the right to reopen the ease to present proof of damage. Decision was reserved on that motion. It was never acted upon specifically, but the memorandum-decision of the Trial Justice together with the judgment which denied “any and all relief requested in the complaint herein ” and provided that “ the complaint herein be and the same hereby is dismissed on the merits” (italics ours), would seem to indicate that it was intended to preclude any further assertion by the plaintiffs of any claim for money damages. At least it might be so construed. In the easement granted by plaintiffs to defendant there is a provision that defendant “hereby agrees to pay any damages which may arise to crops and fences from the laying * # * [of] said pipe line”. Then follows a clause in the nature of arbitration. There may be a claim for such damages. There may also be other claims for damages for improper construction or interference. It does not seem that the Trial Justice intended that his determination should effect such potential claims. If it was so intended, it was erroneous and there was no basis therefor. For these reasons the judgment should be amended by adding after the words “ on the merits ”, the following: “as to the cause of action for rescission and removal or for money damages based on fraud or misrepresentation, but without prejudice to the right of the plaintiffs to assert any other cause of action or claim that they may have for money damages.” (Appeal from judgment of Niagara Trial Term dismissing the complaint on the merits.) Present — Williams, 1*. J., Bastow, Goldman, Henry and Del Veechio, JJ.