
    Mart E. Hackett, Respondent, v. George H. View and Frederick A. Emerick, Appellants.
    Fourth Department,
    November, 1905.
    Reformation of lease — failure to show mutual mistake — power of court reviewing findings in equity—power to grant defendant affirmative - relief — assignor of lease proper party defendant in action by assignee.
    In-an action in equity to reform a lease containing an option to purchase by the lessee, so as to give the lessee merely a first option to purchase if the lessor should conclude to sell, the ground of reformation being mutual mistake, .the complaint should be dismissed on the merits, when the only evidence of mistake is testimony by the plaintiff that prior to the drawing of the lease containing the option of purchase she said to the proposed lessee, “I would just as soon sell it to you * * * as any one else if I was going to sell,” at which conversation no terms of the lease afterwards executed were agreed upon. Though, in an equity case, the court adopt the-findings of a jury, the appellate court may review the findings and decision as if there had been no submission • of fact to the.jury,
    
      When, in such action to reform a lease, the answer of the defendant, who is assignee of the rights of the original lessee including the option to purchase, asks, as affirmative relief, the specific performance of said option to purchase, a judgment therefor should be directed on the dismissal of the complaint.
    The original lessee is a proper party defendant i-n such action to reform a lease, as he would be indirectly affected by the judgment.
    Appeal by the defendants, George H. View and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 13th day of June, 1905, upon the decision of the court rendered after a trial at the Oswego Trial Term, certain questions of fact having been submitted to a jury; also from an order entered in said clerk’s office on the 3d day of April, 1905, denying the defendants’ motion for a new trial, and also from an order entered'in said clerk’s office on the 12th day of July, 1904, denying the defendants’ motion to restrain the prosecution of the action.
    
      James T. Clark, for the appellants.
    
      D. P. Morehouse, for the respondent.
   Nash, J.:

The plaintiff leased her farm in Volney, Oswego county, to George H. View, by a lease in writing made and executed February 12, 1903, for the term of one year from April 1, 1903, with the privilege of renewal from year to year for four additional years, fipon compliance of the lessee with the conditions of such renewal as stated in the lease.' The lease further provided that the lessee VieW should have the privilege of buying said farm for $3,000 at the end of the first or any subsequent year, should the lease be renewed. View went into possession under the lease, and on the 11th day of July, 1903, sold, assigned and transferred the lease and all his interest therein by an instrument in writing which expressly included the option to purchase contained in said lease to the defendant Emerick. Before the expiration of the first year of said lease Emerick offered to purchase the farm and pay the plaintiff therefor said sum of $3,000, which was refused. Emerick thereupon commenced an action against the plaintiff to compel the specific performance of said option in the County Court of Oswego county, which action was put at issue by the answer of the defendant, but has not been tried and is still pending, After said action was- commenced and at issue, the action for a performance of said lease upon the ground of mutual mistake was brought. After issue was joined in this action questions of fact were ordered to be tried by a jury, and upon the trial thereof the jury, in answer to questions submitted to them, found that an oral agreement for the leasing of said farm to said View was made by and between the plaintiff and said View before the making of said written lease, in which it was agreed that if, at any time during the term of said lease or any renewal thereof, the • plaintiff should conclude to sell the farm for $3,000, that he, said View, might have the first right to purchase the same for that price, and that when the written lease was executed and delivered by the parties, they hoth understood and believed that said writing expressed only the said oral agreement. After the findings of the jury upon the questions of fact submitted to them, said findings were adopted and 'confirmed by the court, and upon those and additional facts found by the court, the court has as a conclusion of law found: 1. That the-plaintiff is entitled to judgment changing and reforming the said written lease and agreement, nunc pro tunc as of the time of the date thereof, by striking therefrom the words, “ The party of the second part shall have the privilege of buying said farm for $3,000 at the end of the first or any subsequent year, should this lease be renewed,”' and inserting instead thereof the words : If at any time during the term of this lease or any renewal thereof, the said Mary E. Hackett shall conclude to sell said farm for the price of $3,000, the said View shall have the first right to purchase the same for that price.”

The case here is to be reviewed as if the findings were all made by the court. The court may adopt the verdict of the jury and find accordingly, or may disregard it, and make its own findings, and when the case comes up on appeal it is to be reviewed on the findings and decision of the court, as if there had been no submission of any fact to the jury. (Rapallo, J., Carroll v. Deimel, 95 N. Y. 255.) But we do not find in the record any evidence to support a finding that the agreement in the lease, giving the lessee the option to purchase the farm for $3,000, was entered into by the mutual mistake of the parties. There-is no evidence upon which to find that there was a mutual mistake. The jury, by implication, it is assumed, have found the fact of á mutual mistake of the parties. The instrument could not be reformed upon any other theory than that the jury or the court have so found, The fipding is that there was an oral agreement made by the parties prior to the .making of the written lease, and that both parties understood and believed that tlie writing expressed only the oral agreement. The clear and satisfying evidence which the rule requires in order to reform a writing upon the ground of mutual mistake is not only absent, but, the weight of evidence is strongly with the defendant that the instrument truly expressed the agreement of the parties'. The evidence of Mr. Piper.to the effect that he first took notes of the agreement stated to him by the parties, and reduced their agreement to writing as it was then stated to. him, and that the writing was, not made to express- an Oral-agreement previously entered into, is clear and convincing,, There was in fact no proof of a prior oral agreement to . lease the farm. Theplaintiff testified that after refusing to rent the farm oh one or two occasions, she met View and said to him’ she would rent the farm fbr $300, but would let him'know- after she went.to Fulton. Two days after she drove to his house and went in. Her testimony is: I went into the kitchen and I' didn’t find Mr. View in when I went in there, but he- soon came in after I went , into- the house. I says, ‘ Mr. View, I came to let you know I would rent you the farm,’ in the kitchen; then lie asked me in the sitting room, and I went in. ‘He says, ‘ Mrs. Hackett, providing you will take three thousand dollars for your farm, will you give me .the first privilege of buying it 1 ’ I sa!ys, ‘ yes; I would just as soon-sell it to you for three thousand dollars as any’one else, if I-was going to'sell for three thousand .dollars.’ That is all that was said. That.was in the sitting- room: Then he got- ready and went to Fulton. * * * I have stated all the conversation that occurred in the house in reference to this matter.” FTo terms of- a lease were stated or-agreed upon. The plaintiff had stated that she would rent ■ the farm for $300, .but the terms and conditions subsequently set out in the written lease were not mentioned or stated in the conversation previous to their going to Fulton to-draw the lease. It was-upon-this testimony of the plaintiff that the jury an'swered in the affirma-tive the following question: - “ Did Mary E. Hackett make an oral contract with said View in the month of February, 1903, for the leasing to him of said farm, together with sixteen cows, for the term of one year, commencing April 1, 1903, with the privilege to him of renewal from year to year for four additional years upon said View giving to her certain notice of his desire to so renew ? ”

The court found the additional facts set up in the answer upon which the defendant prays for an affirmative judgment compelling the specific performance of the option to purchase contained in the lease, the assignment of the lease by View to the defendant, the offer of the defendant to purchase the farm and pay the consideration agreed upon therefor, and the refusal of the plaintiff to give to the defendant a deed of the farm under the option in said lease, and as conclusions of law :

3. That defendant Emericlc did all that he was legally-bound to do to perform his part of the option of purchase in the lease by the efforts of himself and his attorneys above set forth, to tender to the plaintiff Hackett $3,000 at the time fixed in the lease for the exercise of said option, and that said Hackett having refused and avoided said tender, is legally bound as if tender had been actually made to her of said sum at said time.
“ 4. That the rent reserved in the lease was a good and valid consideration for any option of purchase therein contained.
“ o. That defendant Emerick, as assignee, stood legally -in the place of, and succeeded, to all the rights that defendant View had under said lease and agreement.”

The court should have dismissed the plaintiff’s complaint upon the merits, and directed judgment in favor of the defendants for the affirmative relief prayed for in the answer.

We are inclined to the opinion that the order denying defendants’ motion for an order restraining the further prosecution of this order and relieving the defendants herein from answering was right and should be affirmed.

View, who. was not a party to the action in the County Court, was properly made a party defendant in this action, inasmuch as he would be indirectly affected by a judgment reforming the lease which he had assigned.

In the disposition we make of the case the order has ceased to be of any importance.

The judgment reformings the lease and the order denying a new trial should he reversed, with costs,, and a new trial granted. .

All concurred.

Judgment and order denying motion for new trial reversed and now trial ordered, with costs to the appellants to abide event, upon1 questions of law and fact.. Order denying motion to .restrain the ■ further prosecution of the action affirmed, without costs.  