
    Julius I. Bacot, Respondent, v. Levi A. Fessenden, Appellant.
    First Department,
    July 7, 1910.
    Equity — reformation of instrument — mistake of scrivener.
    Equity will reform an instrument to correct a mistake of the scrivener who reduced it to writing in expressing the undisputed agreement of the parties whether his mistake be one of law or of fact.
    Appeal by the defendant, Levi A. Fessenden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of November, .1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the defendant’s counterclaim.
    
      Albert I. Sire, for the appellant.
    
      Franklin Pierce, for the respondent.
   Miller, J.:

The plaintiff was the devisee of an undivided one-quarter interest in a contingent remainder in a piece of real estate in the city of New York. He entered into a contract of purchase and sale with the defendant, which, as written, provided that he should deliver a deed “ of said undivided one-quarter interest' in said premises free and clear from all incumbrances except the life estate of the life tenant, Julia N. Knapp [also known as Julia Ann H. Knapp] therein, and two certain mortgages aggregating” $6,000. The defendant refused to complete the purchase. This action was brought by the plaintiff to reform the contract and for specific performance, but it has resolved itself into an action by the defendant on his counterclaim to recover his deposit and expenses and to establish a lien therefor. It is undisputed that the remainder interest was contingent upon the death of Julia N. Knapp without children, but that element is out of the case. ■ It is also undisputed that the premises were subject to certain restrictive covenants and party-wall agreements, which constitute the objections to the title. Upon a former appeal we held that the contract was one to convey an undivided one-quarter interest in the prernises free and clear from all incumbrances except those specified, and that it was not merely an agreement to convey the right, title and interest of the plaintiff free of incumbrances. (130 App. Div. 819.) Plainly, an undivided one-quarter interest in specified premises does not mean merely the interest which the grantor may happen to have; but if there could be any doubt on that head, the fact that the life estate of Julia if. Knapp was an incumbrance upon the whole property would resolve that doubt, as was plainly pointed out upon the former appeal. The defendant then is plainly entitled to recover unless the plaintiff is entitled to relief on the ground of mistake.

• The trial court found that- the intention of the parties was that the instrument should contain the following provision : u Free and clear from all incumbrances except the life estate of the life tenant, Julia Ann H. Knapp, therein, and two certain mortgages, aggregating six thousand ($6,000) dollars, and such restrictions and incum-' brances as were on said premises at the time of the decease of Levi Apgar, deceased.” There is no evidence to support such a finding. On the contrary, it is undisputed that the subject of restrictions and incumbrances other than those specified in the contract were not mentioned, and that the plaintiff did not know of the restrictions and incumbrances which are now objected to. There is, however, a finding of fact, which is labeled a conclusion of law, that the intention of the plaintiff -was to convey, and of the defendant to purchase, simply the One-quarter interest of the- plaintiff. There is ample evidence to support that- finding.

The plaintiff and the*scrivener who drew the contract both testified that the defendant expressly stated that he was satisfied with the title of the plaintiff’s testator. It quite plainly appears that the provision in question was intended only to guard against any judgments or-mortgages which might be a lien on the plaintiff’s interest. Moreover, the trial court found, and there was evidence to justify the finding, that the defendant had special knowledge of the plaintiff’s interest and of the various easements and restrictive covenants which constituted the objections to the title.

We have, then, a ease in which • there was no mistake respecting the agreement actually made, but by mistake of the scrivener in reducing it to writing a different agreement was expressed. The law is well settled that equity will relieve from such a mistake whether it be deemed one of fact or of law. (Pitcher v. Hennessey, 48 N. Y. 415; Maher v. Hibernia Ins. Co., 67 id. 283 ; Born v. Sehrenkeisen, 110 id. 55.)

The judgment should be affirmed, with costs.

Ingraham, P. J., McLaughlin, Clarke and, Dowling, JJ., concurred.

Judgment affirmed, with costs.  