Howells v. Albert

• Decision Date: 19 December 1962
• Citation: 37 Misc.2d 856,236 N.Y.S.2d 654
• Parties: Miriam F. HOWELLS, Plaintiff, v. Morton ALBERT, Dorothy Albert and Joseph Borzell, Defendants.
• Court: New York Supreme Court

Page 654

236 N.Y.S.2d 654

37 Misc.2d 856

Miriam F. HOWELLS, Plaintiff, v. Morton ALBERT, Dorothy Albert and Joseph Borzell, Defendants.

Supreme Court, Trial Term, Nassau County, Part IV.

Dec. 19, 1962.

Marlow & Tesori, Great Neck, for plaintiff. Lenard Marlow, Great Neck, of counsel.

Margolin & Balin, New Hyde Park, for defendants Albert. James W. Pares, New Hyde Park, of counsel.

JOSEPH A. SUOZZI, Justice.

This action was submitted to the Court on an agreed statement of facts, and testimony was heard only with respect to the plaintiff's damages. The action is brought to recover damages for breach of contract and fraud against the defendants Morton Albert and his wife, Dorothy Albert. The action against the defendant Joseph Borzell was discontinued by the plaintiff by stipulation prior to submission of the case in court.

In October of 1959, the plaintiff was informed by Joseph Borzell, a real estate broker, that he had a purchaser for her property for use as an apartment house site. The plaintiff protested that her parcel alone was too small for the contemplated use, and stated she would not sell unless the adjoining owner's property was also purchased, since the premises were more valuable if sold for apartment house purposes. The broker represented that the Miller property adjoining her premises was already under contract to the proposed purchaser, and requested that she have a contract of sale drawn with the name Sadie Albert inserted as the purchaser. The price was fixed at $24,000.00 cash, and August 1, 1960 was agreed upon as the closing date.

A contract was so drawn by the plaintiff's attorney and returned to him signed by Sadie Albert, together with her check in the sum of $1,500.00 representing the contract payment. The proceeds of this check were collected by the plaintiff. The purchaser failed to appear on the closing date, and was declared in default by the seller, who subsequently sold the property for $17,000.00.

An action for breach of contract was then instituted against Sadie Albert in the Nassau County District Court. On the trial of that case, Sadie Albert testified and established that she never signed the contract in question, and had no knowledge of its existence. The action against her was thereupon dismissed, and this action was commenced.

The admitted facts in this case disclose that the defendant Morton Albert had requested the broker, Joseph Borzell, to approach the plaintiff concerning the purchase of her property, and instructed him to have his mother, Sadie Albert, designated as the purchaser. He then procured a $1,500.00 check from his mother for the contract payment, and presumably inserted the plaintiff's name as the payee thereof, and prevailed upon his wife to sign his mother's name to the contract of sale. The parties agree that the wife knew nothing about the contents of the papers she so signed or the purpose for which they were intended. The agreed statement of facts also reveals that the plaintiff was not acquainted with either Sadie or Morton Albert; that she never personally met them; and that it was immaterial to her to whom she sold her property. It is also conceded that Sadie Albert, the named purchaser, had never authorized or consented to the use of her name on the contract.

In the absence of any statutory restriction or fraud, a party may contract or sue in a fictitious name (Sheppard v. Ridgewood Grove, Inc., Sup., 126 N.Y.S.2d 761, n. o. r.), since the name of a person like the name of a thing simply serves as a means of identification (Matter of Zanger, 266 N.Y. 165, 172, 194 N.E. 72, 74, 75). The use of an assumed name, if not employed for deceitful or dishonest purposes, is legal (cf. Matter of Zanger, supra, at 172, 194 N.E. at 74, 75). The name of a principal to a contract need not ordinarily be disclosed. (But cf. Merry Realty Company Incorporated v. Shamokin & Hollis Real Estate Company, Inc., 186 App .Div. 538, 174 N.Y.S. 627, reversed on other grounds 230 N.Y. 316, 130 N.E. 306 [Conflicting interest and misrepresentation of value]).

In this case, the mere fact that the defendant Morton Albert caused his mother's name to be inserted as the purchaser does not render him liable for fraud. There is no evidence that the name was employed with intent to defraud the plaintiff or that the plaintiff placed any reliance on the purchaser's name or reputation, or that she would have refused to sell to the defendant Morton Albert had she known his true identity. The agreed statement of facts affirmatively shows that the plaintiff would have entered into the contract regardless of the name of the purchaser, provided the same terms and conditions were obtained.

The damage to the plaintiff here resulted not from the defendant's adoption of his mother's name, but rather from his breach of contract. A cause of action for fraud cannot be predicated on the fact that a party to a contract defaulted thereon. Since there is no proof that the misrepresentation of the identity of the purchaser was material or made with intent to deceive the plaintiff, and that she in turn relied thereon, the cause of action for fraud cannot be maintained. (Cf. Turchin Sheffield Plate & Sterling Co. v. Baugh, Sup., 117 N.Y.S. 137, n. o. e.) The essential elements of actionable fraud are lacking in this case, and the first cause of action is dismissed.

When the defendant Morton Albert entered into the agreement of sale with the plaintiff in the name of his mother without her knowledge, authorization or consent, he became individually obligated on the contract. The rule is that a person who enters into a...