
    Vito Cannella, Appellant, v. Louis M. Lerman and Rose Lerman, Respondents.
   Judgment in favor of defendants and against plaintiff on the counterclaim reversed upon the law and the facts, counterclaim dismissed, and judgment directed for plaintiff as prayed for in the complaint, with costs. Findings of fact inconsistent with this determination are reversed. New findings will be made. We are of opinion that there was neither mistake nor fraud in the contract upon which appellant based his cause of action, and which was reformed by the trial court, and as reformed, directed to be specifically performed by appellant. There was no mistake as to the terms of the original agreement, nor was there any mistake or inadvertence in reducing it to writing, The instrument expresses the agreement actually made. Where there is no mistake in the terms of an agreement, but through a mistake of the scrivener, or by any other inadvertence in reducing it to writing, the instrument does not express the agreement actually made, the instrument may be reformed. Where the action, however, is to reform the agreement itself, it is essential that it be alleged and proved that the mistake was mutual. Here there was no mistake, either in the original agreement or in the instrument executed by the parties to carry out their contract. (Isaacs v. Schmuck, 245 N. Y. 77; Born v. Schrenkeisen, 110 id. 55, 59; Pitcher v. Hennessey, 48 id. 415; Maher v. Hibernia Insurance Co., 67 id. 283.) The theory of defendants was not fraud, but mutual mistake. Fraud was neither alleged in the counterclaim nor proven upon the trial. Young, Rich, Kapper, Hagarty and Seeger, JJ., concur. Settle order on notice.  