Kirsch v. Giglio

¶1Action to reform a lease. Judgment reversed on the law and the facts, with costs, and judgment directed in favor of defendant dismissing the complaint, with costs. The markings or changes on the agreement negative the idea of mutual mistake. ■ When they wqre made the presently alleged mistake could have and would have been corrected if the minds of the parties had met in a manner different from the language of the agreement. There was no mutual mistake. The documentary proof sustains this view. Inconsistent findings of fact and conclusions of law are reversed and new findings and conclusions will be made. Hagarty, Carswell, Johnston and Adel, JJ., concur; Lazansky, P. J., dissents and votes to affirm, with the following memorandum: The Special Term believed the witnesses for plaintiff, corroborated by a witness for defendant, and its determination should not be disturbed. It could have found that the change made in the second paragraph of the 27th provision of the lease by striking out the word “ registered ” before the word “ mail ” bore no such relationship to the preceding paragraph, as to the intended content of which the controversy arose, as to require the attention of a reasonably careful mind to be directed to the fact that there had been an omission. Settle order on notice.