Russo v. Friscia

15 A.D.2d 516, 222 N.Y.S.2d 595, 1961 N.Y. App. Div. LEXIS 7230

Opinion

As a defense and counterclaim, the defendant alleged facts to support a claim for reformation and also for rescission of the contract. We shall assume that he did not make a sufficient showing as to the defense of and counterclaim for reformation (see, e.g., Ross v. Food Specialties, 6 N Y 2d 336, 341; Metzger v. Ætna Ins. Co., 227 N. Y. 411, 417; but, cf. Selmar Garage Corp. v. Rink Realty Corp., 276 App. Div. 786; Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285, 297). Nevertheless, in an appropriate case, a unilateral mistake may justify rescission in equity (Metzger v. Ætna Ins. Co., supra, pp. 411, 417), or may justify a court of equity in refusing specific performance (5 Williston, Contracts [rev. ed.], §§ 1577-1580; cf. Johns-Manville Sales Corp. v. Stone, 5 A D 2d 110, 114), even when the mistake was caused by the misrepresentation of the party’s own attorney (see, e.g., Pimpinello v. Swift & Co., 253 N. Y. 159; also, see, e.g., Matter of Oswald, 281 App. Div. 902). In our opinion, a trial should be had and the determination herein should be made by a court of equity upon the basis of all the proof adduced. Nolan, P. J., Ughetta, Pette and Brennan, JJ., concur; Beldock, J., concurs in the result.