Amend v. Hurley

264 A.D. 881, 35 N.Y.S.2d 856, 1942 N.Y. App. Div. LEXIS 5236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1942
• Status: Published

Opinion

In an action for an accounting, order striking out, as insufficient in law, the three partial defenses and the three counterclaims contained in defendant’s amended answer, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, wi1 ten dollars costs, but without prejudice to respondents’ right to renew their motio for the alternative relief sought under rule 103 of the Rules, of Civil Praetic Defendant, in the three partial defenses and the three counterclaims for reformatioi alleges that there is a discrepancy between the terms as settled by the preliminar 'treaty and those embodied in the written contract attached to the complain It is well settled that where there has been no mistake in the agreement but mistake merely in reducing it to writing, a court of equity may reform the writin and it is not essential to allege that the mistake in reducing it to writing wa mutual. (Hart v. Blabey, 287 N. Y. 257, 262; Born v. Schrenkeisen, 110 id. 55 Pitcher v. Hennessey, 48 id. 415.) As the court, in granting the motion, did no consider the alternative relief sought under rule 103 of the Rules of Civil Practice plaintiffs may renew their motion for that relief if they be so advised. Lazansky P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.