Green v. Smith — 117 A.D. 920

Majority

p. 920

First Department,

February, 1907.

Thomas L. Green, Respondent, v. James G. Smith, Appellant.

Headnote

Sale — mutual mistake — when corrected.

Appeal from á judgment entered upon a verdict directed by the court.

The case presented a question of fact which should have been submitted to the jury. There was evidence which would have sustained a finding that both parties agreed upon a sale oh the basis testified to by'the defendant, and that the amount which defendant in form agreed to pay was the result of an error of calculation. If this should be found to be the case, since the position of plaintiff has not been changed in consequence of the error, there is no reason why the mistake should not now be corrected.

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

Present — Patterson, P. J., McLaughlin, Hofighton, Scott and Lambert, JJ. ’

Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.