#### Mark H. Eisner, Appellant, *v.*Pringle Memorial Home, Respondent.

First Department,

February 19, 1909.

Pleading — conclusions — amendment.

Where a lease gave the lessor an option either to renew the lease or to pay the tenant the fair value of a stable on the lands, the tenant by alleging that the defendant at the expiration of the lease “elected” to pay the value of the stable does not allege a legal conclusion but a fact, and the form of the allegation furnishes no ground for a dismissal.

*It seems,*moreover, that were the complaint defective in alleging a conclusion, the plaintiff should have been permitted to amend at trial or have been given an opportunity to move for an amendment at Special Term.

Appeal by the plaintiff, Mark H. Eisner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of October, 1908, upon the dismissal of the complaint by direction of the court at the beginning of the trial at the Hew York Trial Term; also from an order entered on the 13th day of October, 1908, direct-ting the dismissal of the complaint, and also from an order entered in said clerk’s office on the 8th day of October, 1908, denying the plaintiff’s motion to set aside the direction dismissing the complaint and for a new trial made upon the minutes.

*Jerome Eisner,*for the appellant.

*Nelson Zabrikie,*for the respondent.

Scott, J.:

Plaintiff appeals from a judgment entered upon the dismissal of the complaint at the trial. Ho evidence was received, and the dismissal appears to have proceeded upon the ground that the'complaint failed to state a cause of action. The plaintiff is the holder, by assignment, of a lease made by defendant. The lease expired on August 1, 1907, and provided that at the expiration thereof the defendant would, at its option, either grant unto the tenant a further renewal lease of the premises for a further term of twenty-one years or then pay to the tenant the just and fair value of *560any stable 'which may be then standing on 'the demised premises. It was further provided that in case the parties concerned do not agree upon the value of the building, such value should be determined and ascertained by arbitration. The complaint alleged: *“*Seventh. That prior to the 22nd day of June, 1907, defendant *elected,*pursuant to the said terms of the said lease, to pay to plaintiff, the just and fair value of the building upon the premises in question, and plaintiff and defendant *were*not able to agree upon such fair and just value.”' The following paragraphs set forth the notification of plaintiff by defendant that it had appointed an appraiser as provided in said lease, and a request that the plaintiff would appoint an appraiser, in his *behalf;*the appointment of an appraiser by plaintiff; the award of the appraisers as to the value of the buildings, and the failure of the defendant to pay the amount' so awarded, for the recovery of which this action is brought.- The record does not indicate wherein the court found the complaint to be defective, but we are informed by the respondent’s brief that the presumed defect lay in the use of the word “ elected” in the 7th paragraph quoted above, the contention being that that word indicates only a legal conclusión, without a pleading of the facts upon which it rests. The lease left it optional with the landlord whether to renew it, or to pay the value of the stable. The exercise of that option by defendant, and the determination which course it would pursue, is properly and legally denominated an. election. Hence, when the pleadings alleged that the defendant “ elected ” to pay the value of the stable, he alleged a fact, to wit, that defendant had exercised its option and determined what course it would pursue. It is difficult to see by what choice of words the pleader could have more clearly and succinctly alleged what he sought to allege. If it. were necessary, as we do not think it was, to allege the evidentiary facts which led the pleader to believe that the defendant had “ elected ” to pay for the buildings, those facts are set forth in the following paragraph. Our attention has not been called to any other supposed defect in the complaint, and we find none... It may be said, however, that even if the complaint had been technically deficient in the particular pointed out, the plaintiff should have been permitted either to amend the complaint at the trial, or should have been afforded an opportunity to move such an amendment at Special *561Term. The denial of his motion in that regard would of itself have necessitated a reversal of the judgment. But, as we construe it, the complaint was sufficient and needed no amendment.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingbaham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.