
    Millbrook Company, Appellant and Respondent, v. Edward V. Gambier et al., Respondents and Appellants.
    
      Millbrook Co. v. Gambier, 176 App. Div. 870, affirmed.
    (Argued April 14, 1919;
    decided May 20, 1919.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 16, 1917, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term. The plaintiff, as assignee of the City and County Contract Company, a New York corporation, sues in equity to rescind on the ground of mistake a contract made March 8, 1909, between the defendant Gambier and others as vendors, and contract company as purchaser, and to recover upon such rescission the sum of $4,000 paid by contract company to Gambier as a first payment under said contract. The contract was for the sale of. a parcel of real estate which defendant Gambier claimed to own. Defendant Strong is joined as a defendant in the action because he asserted ownership of the property, and claimed that he was entitled to the said sum of $4,000. Defendant Gambier counterclaimed for use and occupation of the premises. The trial court awarded judgment rescinding the contract and directing that plaintiff have recovery against Gambier for the amount demanded in the complaint, with interest and costs. It dismissed Gambier’s counterclaim. The Appellate Division, by a divided court, modified this ■judgment by reducing the amount of plaintiff’s recovery.
    
      Ralph Polk Buell and George S. Graham for plaintiff, appellant and respondent.
    
      Emory R. Buckner, Clinton Combes and John McG. Goodale for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Chase, Collin, Cuddeback, Hogan, McLaughlin and Crane, JJ. Absent: His cock, Ch. J.  