Volume 149 — New York Reports

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1894, which affirmed a judgment in favor of defendants dismissing the complaint upon the merits, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court below had full power, and it was its duty to reform this lease, upon satisfactory proof that the clause in controversy, by reason of mutual mistake, or of mistake on one side and fraud upon the other, failed to express the mutual intention of the parties, or to carry out the previous mutual agreement. (Haviland v. Willets, 141 N. Y. 35; Kilmer v. Smith, 77 N. Y. 226; Bush v. Hicks, 60 N. Y. 298; Welles v. Yates, 44 N. Y. 529; Elliott v. Sackett, 108 U. S. 132; Walden v. Skinner, 101 U. S. 585; Pierce v. Brown, 7 Wall. 217.) The finding of the court below, that the Christopher Street Company and the Twenty-third Street Company never agreed to any other contract than the one actually signed, and that they did both agree to that precise contract, is contrary to the undisputed evidence, and should, therefore, be overruled by this court as an error in law. (Blackman v. Striker, 142 N. Y. 555, 561; Clark v. Devoe, 124 N. Y. 120, 124; McArthur v. Gordon, 126 N. Y. 597, 609; W. N. Y. L. Ins. Co. v. Clinton, 66 N. Y. 326, 331; Donaldson v. Wood, 22 Wend. 395; Weed v. Tucker, 19 N. Y. 432; White v. Wager, 25 N. Y. 328; Dwarris on Statutes, 562; Bell v. Mayor, etc., N. Y., 105 N. Y. 139; People ex rel. v. McClave, 99 N. Y. 83, 89.) There was a mistake in the lease of 1884. (Linton v. U. F. W. Co., 128 N. Y. 672 ; Ward v. Waterman, 85 Cal. 488; Warrick v. Smith, 137 Ill. 514; Hausman v. Burnham, 59 Conn. 117; Code Civ. Pro. §§ 1337, 1338 ; Bedlow v. N. Y. F. D. D. Co., 112 N. Y. 263 ; Claflin v. Meyer, 75 N. Y. 260; Matthews v. Coe, 49 N. Y. 57; Pratt v. Foote, 9 N. Y. 463.) The contention that the language of the lease of 1884 did not admit of any misconstruction or any two interpretations, and could not, therefore, have been misunderstood, is untenable. (Kilmer v. Smith, 77 N. Y. 226; Haviland v. Willets, 141 N. Y. 35.) The burden of proof rests upon the defendants, who insist that the lease is corree? as it stands, to prove that the change was agreed to by all parties, and that the new clause expresses their intentions. (Haviland v. Willets, 141 N. Y. 35 ; Kilmer v. Smith, 77 N. Y. 226; Hay v. S. F. Ins. Co., 77 N. Y. 235; Warrick v. Smith, 137 Ill. 514; Linton v. U. F. W. Co., 128 N. Y. 672.) The practical construction put upon the lease by the parties to a contract should always control the interpretation of the contract itself. (Reid v. Sprague, 72 N. Y. 457, 461; Leavitt v. W. L. Co., 54 Fed. Rep. 439.) The injured party is entitled to a reforrnation of the instrument, so as to express the actual intention of the parties, whether the mistake be called one of fact or of law, and whether the mistake is mutual or not, so long as the only mistake alleged is in the reduction of the agreement to writing. (Born v. Schrenkeisen, 110 N. Y. 55; Pitcher v. Hennessey, 48 N. Y. 415 ; Bush v. Hicks, 60 N. Y. 298.) The motion on the trial to amend the complaint should have been granted. (Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Code Civ. Pro. § 723; Tilton v. Beecher, 59 N. Y. 176.)</p> <p>It is quite immaterial that some of the findings stand in the decision as conclusions of law. They are undoubtedly findings of fact and will be given effect as such, notwithstanding the designation under which they stand in the decision. They are, moreover, necessary and inevitable inferences from the facts found and specifically designated as findings of fact. (Sherman v. H. R. R. R. Co., 64 N. Y. 254, 259, 260; In re Clark, 119 N. Y. 427, 433 ; Evans v. Howell, 75 Hun, 199.) The plaintiffs’ contention being that the instrument- in question failed through mutual mistake to express the alleged prior agreement of the three parties to it, the burden was upon them to establish, first, such alleged prior agreement between all the parties, and, second, the failure of the instrument to express it because of accident or the mutual mistake of all the parties, not simply by a preponderance of evidence but by proof “ so clear and convincing as to leave no room for doubt.” (Howland v. Blake, 97 U. S. 624; Mead v. W. F. Ins. Co., 64 N. Y. 455; Ford v. Joyce, 78 N. Y. 618 ; Jackson v. Andrews, 59 N. Y. 244; Southard v. Curley, 134 N. Y. 148 ; Devereux v. S. F. Office, 51 Hun, 147; Wilson v. Deen, 74 N. Y. 531; Sidway v. Sidway, 26 N.Y. S. R. 902; Avery v. Equitable L. Ass. Society, 117 N. Y. 457 ; Baird v. Mayor, etc., 96 N. Y. 598.) Hone of the exceptions to the rulings of the court below upon the alleged patent ambiguity of the reservation clause of the lease were well taken. (Horton v. Woodruff, 2 N. Y. 153, 156; Glacius v. Black, 67 N. Y. 563, 567.) The motion to amend the complaint was properly denied. Moreover, its denial did not in any way prejudice the plaintiffs, and did not affect, and could not have affected in any manner, the findings made or the judgment rendered. (Richtmeyer v. Remsen, 38 N. Y. 206; Riggs v. Chapin, 27 N. Y. S. R. 268 ; Barnes v. Seligman, 29 N. Y. S. R. 68 ; Rosenwald v. Hammerstein, 12 Daly, 377; Code Civ. Pro. § 723; Mercier v. Lewis, 39 Cal. 533 ; Baldwin v. Rood, 17 N. Y. S. R. 517 ; People v. Dennison, 84 N. Y. 272 ; Freeman v. Grant, 132 N. Y. 22; Cumber v. Schoenfeld, 34 N. Y. S. R. 770.)</p>

M., on Sunday. Appeal from supreme court, appellate division, first department. Henry J. Havnor was convicted of carrying on the business of a barber in the city of Hew York after 1 o’clock p. m. on Sunday. The judgment of the trial court was affirmed by the appellate division of the supreme.conrt, and defendant appeals. Affirmed.

On June 11, 1895, an order to show cause why a peremptory manuamus should not issue against the appellants was granted and made returnable on the 15th day of that month. The motion was based on an affidavit made by the relator.

112, Laws of 1896) there was no power in the board to issue a license for a term expiring later than April 30. 1896. The act under consideration is a taxing law, as distinguished from an act licensing the liquor traffic.

Yo alternative writ was granted or asked for, but an order was made directing that a peremptory- writ should, in the first instance, issue. The order granted was based upon affidavits, and made on the return of a show-cause order. Upon the return of the order the affidavits of the relator and of the president of the Produce Exchange were read, and upon such affidavits alone the order for a peremptory writ of mandamus was granted.

The relator sets forth, in his petition for a writ of certiorari, his appointment in 1890 as a member of the fire department of the city of Brooklyn; that on the 8th day of January, 1895, the commissioner of the fire department irregulai'ly illegally and without cause removed him from such department; that he was charged on January 3d, 1895, with having been intoxicated and that he was found guilty upon said charge before the said commissioner, notwithstanding his plea of…

<p>This was a motion to dismiss the appeal herein.</p>