Dill Enterprises, Inc. v. DeLeo

• Decision Date: 02 April 1982
• Citation: 113 Misc.2d 544,449 N.Y.S.2d 587
• Parties: DILL ENTERPRISES, INC. d/b/a Lloyds of Rosendale, Plaintiff, v. John L. DeLEO, Defendant.
• Court: New York County Court

Page 587

449 N.Y.S.2d 587

113 Misc.2d 544

DILL ENTERPRISES, INC. d/b/a Lloyds of Rosendale, Plaintiff, v. John L. DeLEO, Defendant.

Ulster County Court.

April 2, 1982.

Gerald Hecht, Brewster, for plaintiff.

John L. DeLeo, pro se.

DECISION

JOSEPH J. TRAFICANTI, Jr., Judge.

In this case there was a mistake of fact made by the seller, the plaintiff herein, in misquoting a price for goods. In relying on the misquoted price, which was less than it should have been, the buyer, defendant herein, materially changed his position by constructing a deck before the mistake was noticed by either party.

Defendant relies on the case of Harper, Inc. v. City of Newburgh, 159 A.D. 695, 697, 145 N.Y.S. 59 (2d Dept., 1913), which holds that recision involves inquiring into whether parties can be put back in status quo; if this cannot be done, then the Court only affords such relief when the clearest and strongest equity imperatively demands it. Obviously the parties cannot be put back in status quo since defendant has built a deck with the purchased goods. The damage to plaintiff, should the purchase be rescinded, is not so great as to imperatively demand such relief.

Plaintiff, to counter this argument, cites DePaola v. City of New York, 90 Misc.2d 379, 394 N.Y.S.2d 525 (Sup.Ct., Bronx Co., 1977). Plaintiff claims that DePaola cited Harper, Inc. to find that the mistaken party could be relieved from its mistake. However, in DePaola the parties were substantially returned to the status quo. DePaola holds that negligence is not a criteria for denying relief where the other party has not materially changed his position (DePaola, supra at 381, 394 N.Y.S.2d 525). In this case the defendant has materially changed his position and cannot be returned to the status quo before the purchase.

A party may be relieved from a mistake without fault on his part where some ambiguity or peculiar circumstance is shown to have induced the mistake and the mistake is one which was known or ought to have been known to the other party (Assurance Co. of America v. Pulin, 142 N.Y.S.2d 809, Sup.Ct.App.Term). There appears to be no ambiguity nor peculiar circumstance which induced the mistake herein; in fact defendant in a return telephone call to plaintiff questioned the low figure quoted, and plaintiff stood by it.

A payee cannot allege carelessness against a payor where a mistake causing payment was that of the payee, upon whose representations the payor relied in making the payment (...