Green v. Smith — 102 N.Y.S. 629

Majority

p. 629

(117 App. Div. 920)

GREEN v. SMITH.

(Supreme Court, Appellate Division, First Department.

February 8, 1907.)

Headnote

Bills and Notes—Actions—Defense—Mistake.

Where defendant was sued on a note given for part of the price of corporate stock purchased from plaintiff, and there was evidence that would have sustained a finding that they agreed that the stock should be sold on a certain basis, and that the greater amount specified in the note was the result of an error in calculation, the facts should have been submitted to the jury.

Appeal from Trial Term, New York County.

Action by Thomas L,. Green against James G. Smith on a note given for part of the purchase price of corporate stock. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

p. 630

Argued before PATTERSON, P. J., and McLAUGHLIN, HOUGHTON, SCOTT, and LAMBERT, JJ.

Charles Goldzier. for appellant.

William C. Relyea, for respondent.

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 on 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.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. *