(dissenting):
I am unable to concur. in the views expressed in the majority opinion of the' court on the appeal in this action! The allegations .of the. 4th paragraph of the complaint are therein treated as surplusage — they have virtually been eliminated from the pleading and the action has been left to stand simply as one to recover damages for deceit. If that may be done, then the conclusion reached is justified; for it is an ancient maxim in pleading that surplus agium non. noeet; but that maxim has no place in the construction of a pleading which from its whole framework shows that the pleader intended the disregarded allegations to be. material and essential parts of the causé of action. It is well settled that a person situated as this plaintiff was has one óf three remedies that may be resorted to, and the adoption of one excludes the others. She either could have rescinded the contract by restoring or tendering the lease, and then have brought an action-; or might have kept what was received and sued .to recover damages for the fraud; or commenced an action in equity to rescind and for equitable relief, offering in the' complaint to. restore what was received. These actions are -all fundamentally different. (Gould v. Cayuga County Nat. Bank, 86 N. Y. 84.) The general rule relating to such remedies is stated in Vail v. Reynolds (118 N. Y. 297). It seems to me that a simple perusal of the complaint in this case evinces the deliberate purpose of the pleader to sue as upon a rescinded transaction, the motive of that rescission being' the fraud of the deféndant in inducing the plain tiff to make the contract for the lease. In that aspect the 4th paragraph of the, complaint is not only germane to but is an essential part of the cause of action. It cannot be ignored by the simple suggestion that without it there are'sufficient averments in the complaint to maintain an action for deceit.- One of three inconsistent- remedies has been deliberately selected, and the complaint *802contains every allegation which the law requires to be .made to enti- • tle: a person to recover as upon a rescinded contract. Here, by the complaint, it is alleged, in substance,- that" the ..plaintiff was .willing,. and offered before the action was brought, to -restore what, she had received tinder the. "contract with the defendant,- and that allegation is" made" the very basis of her action! If I am right in this "construction "of the pleading, the judgment should be affirmed, for the final order in the summary proceeding" was an .-'adjudication that the lease was binding-upon the plaintiff, and lienee’-'she could not maintain this action. Fraud might have been set., up as a defense" to the summary proceedings, under the provisions of section 2244 of the Code of Civil Procedure, precisely in the" same way as new .matter constituting a. legal or equitable defense or counterclaim in an action for rent. In Woods v. Garcewich (67 App. Div. 53) it was held by this court that in summary, proceed-"' ings in the Municipal Court in the city of"HewiYork the assignment of a lease might -be attacked on the ground of fraud and the decision of - that court would be a bar to an action to set aside the assignment. What was decided in that: case is cohtrolling in this, the only difference being that in the case cited the fraud Was .afirma-, tivel-y set up as a matter of defense, while here the summary proceeding passed against, the plaintiff by. default. But in Reich v. Cochran (151 N. Y. 122) it was stated that a "judgment taken by " default in summary proceedings by a landlord for non-payment of ■ rent is conclusive' between the parties as to.the existence and validity of the lease, the occupation of the tenant,, ánd that rent is due, and also as to any other facts alleged in the "petition or affidavit which are required to. be alleged as the bases of the proceeding (citing Brown v. Mayor, 66 N. Y. 385; Jarvis v. Driggs, 69 id. 143; Nemetty v. Naylor, 100 id. 562), thus-applying to summary proceedings in- ejectment-the rule stated in Pray v. Heyeman (98 N. Y. 351), that the estoppel- of a judgment• extends to" every material; matter within the issues which was expressly.litigated and determined, and also to those matters which, ' although not expressly. determined, are coriiprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. . The case of Prince v. Jacobs (80 App. Div. 244) does not seem to me to be a controlling authority in this. case. I do’ *803not gather from the report of that case that the question' was raised as to the symmary proceedings constituting either a bar or an estoppel to the-plaintiff’s action, which' was purely one. for: damages at law,.they retaining what they had received. ■ •
I think the judgment should he affirmed.
Lambert, J., concurred.
Determination and judgment reversed, new trial ordered, costs to appellant, to abide event. .