
    Anton Exkorn, Respondent, v. Paulina Exkorn, Appellant.
    
      ■Statute of Limitations — action to reform a deed for mistake — barred in ten years — the time of the discovery of the mistake is immaterial.
    
    An action, brought to reform a deed by inserting the plaintiff’s name in the deed' as a co-grantee with the defendant, resting solely upon the ground of mistake, is barred by the ten-year Statute of Limitations.
    The provision of the Code of Civil Procedure (§ 889, subd. 5), that in certain cases the cause of action is not deemed to have accrued until the discovery by the plaintiff of the facts constituting a fraud, is limited entirely to cases of fraud, and no such rule, is applicable to a case where the action is based simply on a mistake.
    Appeal by the defendant, Paulina Exkorn, 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 27th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Frederick Seymour, for the appellant.
    
      Frederick A. Botty, for the respondent.
   Barrett, J.:

The action was brought to reform a referee’s deed by inserting the plaintiff’s name as co-grantee with the defendant. No fraud is. alleged, and the case rests solely upon an allegation of mistake. The deed was delivered in July, 1877, and the action was commenced in August, 1894. The defendant pleads the ten-year Statute of Limitations. The plaintiff acknowledges that this would be fatal but for the fact that he did not discover the mistake until October, 1884. But the running of the statute did not depend upon the discovery of the mistake. That was the general rule in equity before the Code. The decisions of courts of equity then placed mistake upon the same footing in this regard with fraud. Under the Code, however, the rule as to discovery of the facts, upon which the action is based is limited to actions for fraud,, and all other cases are excluded from its operation. As was said by Allen, J., in Oakes v. Howell (27 How. Pr. 145, at p. 151)" “ Erom. the absolute obligation of the present statute upon the courts, and its clear application to every case that can arise, and to every form of action, by every principle of statutory construction the cases of mistake .and accidents are excluded from the exceptions in favor of actions for relief from fraud.” This case has been repeatedly cited with approval, and was followed in Hoyt v. Putnam (39 Hun, 402, 406) and Sprague v. Cochran (70 id. 513). We think the rule is sound. The court cannot read the discovery provision into section 388 of the Code of Civil Procedure. The Legislature in this connection acted advisedly and deliberately both with regard to inclusions and exclusions. Had it been so intended, it would have been as easy and simple to provide for the discovery of facts constituting mistake as of facts constituting fraud. The Legislature has not done so, and consequently the cause of action here accrued upon delivery of the deed.

Upon the facts, however, we have no doubt that in July, 1882, the plaintiff had full knowledge that his wife was the sole grantee in the deed. He made an affidavit then, stating that he had read over his wife’s affidavit in which this assertion appears, and that his wife’s affidavit was true to his own knowledge. There are other facts, too, from which the conclusion is inevitable that in the year 1892 plaintiff was fully acquainted with the circumstance of which he now complains.

Indeed, the case throughout rests upon a very slight foundation. The evidence of mistake was far from clear or convincing, and we we think that the complaint should have been dismissed upon the merits. The truth is that the plaintiff put the property in his wife’s name at a time when they were living happily together. How that they have separated he naturally wants the property back. As that is impossible, he would, at least, like to share it. The law cannot help him. Upon both the facts and the law, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.  