
    Charles H. Southard, App’lt, v. John J. Curley and Jeremiah M. Brosnan, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Contract—Sale of building.
    The action was brought for breach of a written contract for the sale of a building. Defendants alleged that they agreed for an option to purchase within thirty days, but did not absolutely agree to purchase the same, and that the writing did not express the agreement made. The evidence on this point was conflicting. Held, that it was not necessary to reform the writing, but when the jury found that the parties did not make such an agreement as was expressed in the writing, the defendants were entitled to a verdict.
    Appeal from a judgment rendered on a verdict for defendants, and from an order denying a motion for a new trial.
    The action was brought to recover $9,000 damages, for breach of contract. The contract in question is in writing, and on demurrer was held to be an absolute contract of purchase by defendants. The trial judge also so held.
    The defendants, after the decision on the demurrer, set up an alleged mutual mistake, alleging that the real intention was merely to give the defendants an option on the property in question.
    
      Horace Secor, Jr., for app’lt; Charles H. Morgan, for resp’t Curley; August Kohn, for resp’t Brosnan.
   Dykman, J.

In his complaint in this action the plaintiff stated that he was the owner of the Mammoth Hotel at Rockaway Beach and that after he had torn down and removed a part of the building the defendants in this action entered into a written agreement with him to purchase the portion of the building which remained standing with certain appurtenances for the sum of $31,-000 to be paid in thirty days, and paid one hundred dollars on account of the purchase money; that the defendants have failed to consummate their agreement to his damage of $9,000, which he claimed to recover in this action.

For a defense to the action the defendants set up that they agreed for an option to purchase the building and made no absolute agreement to purchase the same, but that the plaintiff agreed to give them the option to purchase the building in thirty days, and that the writing did not express the agreement made by the parties.

The parties went to trial upon that issue at the circuit and the jury rendered a verdict for the defendants, and the plaintiff has appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial upon the minutes of the court.

Upon the trial the plaintiff introduced the written agreement and- some letters between the parties, and then the defendants were examined as witnesses in their own behalf and stated the agreement according to their answer, which the plaintiff denied.

Such contradictory evidence was submitted to the jury in a faultless charge and the jury found for the defendants. Evidently an appellate tribunal finds no room for interference in this case.

The defendants did not seek to reform the written contract, but said they did not make it. They were willing to abide by the agreement which they said they made, and which the jury must have found they made, but they said there was a mistake in reducing the agreement to writing. It was not necessary, therefore, to reform the writing. If the jury found that the writing expressed the agreement, the verdict must have been given to the plaintiff, but when the jury found that the parties did not make such an agreement the defendants were entitled to the verdict.

The j udgment and order denying the motion for a new trial should, therefore, be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  