
    Lillian Knobloch, Respondent, v. Dora Kracke and Others, Defendants, Impleaded with Philip Simon and Minnie Simon, His Wife, Appellants.
    Second Department,
    May 9, 1912.
    Equity—reformation of deed — mutual mistake — proof justifying reformation — when no laches — evidence — transactions with decedent — harmless error.
    Where a mistake is mutual, equity can decree the reformation of executed . as weE as exeeutionary contracts.
    Suit to reform a deed on the ground that the description by mutual mistake covered the whole of a parcel of lands instead of one-half thereof which was intended to be conveyed. Evidence examined, and held, to sustain a finding that there was a mutual mistake in drawing the instrument.
    Where the conveyance was made in 1905 and the grantee had possession only of the one-half portion which the parties intended should be conveyed until the death of the grantor in 1908, and nothing occurred likely to apprise the parties of the mistake untE it was discovered on the settlement of the grantor’s estate, and the grantor’s heirs thereupon acted with reasonable promptitude, there was no laches which bars a reformation.
    In such suit for the reformation of a deed it is not error to exclude conversations between the defendant grantee and the plaintiff’s intestate under section 839 of the Code of Civil Procedure, where none of the conversations testified to by the plaintiff’s witnesses related to said conversation and the contract of sale was not made at the time thereof. In any event, any error was harmless where the defendant was subsequently allowed to testify to conversations with the decedent to such extent that the record was as favorable to him as it would have been had the other testimony been allowed.
    Appeal by the defendants, Philip Simon and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 12th day of May, 1911, upon the decision of the court rendered after a trial at the Nassau Special Term.
    
      Charles J. Buchner, for the appellants.
    
      Harrison C. Glore, for the respondent.
   Hikschberg, J.:

This is an action for the reformation of a deed given by plaintiff’s intestate, one Charles L. Kracke, on the ground that the description of the property conveyed was erroneous owing to the mutual mistake of the parties, and for the partition of certain land claimed to have been mistakenly included in the description in said deed. In 1905 said Kracke purchased a parcel of real estate in Nassau county, 100 feet in width by 170 feet in depth. In 1906 he erected a two-family frame house on the southwesterly half of the property. In June, 1906, he entered into a written contract under seal with the defendant Philip Simon, whereby he agreed to convey the northeasterly half of the property to Simon. That contract described the property to be conveyed as 50 feet in width. The title was closed on August 1, 1906, and Simon’s attorney, who prepared the deed, inadvertently included the entire 100 feet of Kracke’s lot in the description in the deed to Simon. The attorney took that description from an old deed instead of from the contract of sale. .At the time of the sale Kracke had divided the 100-foot lot into two lots by a fence, thereby separating the 50 feet to be sold, that is, the northeasterly half, from the 50 feet whereon his house stood, that is, the southwesterly half. After the closing of title Kracke continued in possession of the southwesterly half and rented the house thereon until his death in 1908. The mistake in the description was not discovered until about the time of the commencement of this action. During all the time between. the passing of title and the commencement of this action Kracke, and after his death his widow, collected the rents and paid the taxes on said southwesterly half of the lot. After the discovery of the mistake in the description in the deed the plaintiff requested the appellants, Simon and his wife, to sign a quitclaim deed, releasing the southwesterly half of the property inadvertently included in the description in the deed from Kracke to Simon, and they refused.- The appellants interposed an answer in this action, admitting that since the date of Kracke’s deed he and his heirs had remained in possession of the southwesterly half of the premises in question and collected the rents thereof, but claimed that said possession had been wrongful and asked for an accounting regarding such rents.On the trial the appellants claimed that Kracke had intended to sell the entire 100 feet, and that the deed was correct and the contract of sale incorrect. The learned trial justice found against such claim, and accordingly-awarded judgment conforming the description in the deed to the description in the contract of sale.

It seems evident that Kracke intended to sell, and that Simon intended to purchase, only the northeasterly half of Kracke’s lot. The fact that Kracke and his heirs were allowed to continue the exercise of the rights of ownership over the southwesterly- half and the house thereon is inconsistent with any other theory. In any event there is ample evidence in the case to sustain the learned trial justice’s finding that there was a mutual mistake in drawing the deed. Where the mistake is mutual, equity can decree reformation of executed as well as of executory contracts. (Gillespie v. Moon, 2 Johns. Ch. 585, and Paine v. Upton, 87 N. Y. 327.) There does not appear to have been any laches, and the plaintiff moved with reasonable promptitude upon discovering the error. Until the death of Kracke and the discovery of the error on the settlement of his estate, nothing occurred likely to apprise any of the parties of the mistake. The lapse of time since the giving of the deed has not prejudiced the rights of any one. Under the circumstances, therefore, the plaintiff is not barred of her relief. (See Gillespie v. Moon, supra, 600, 602; Andrews v. Gillespie, 47 N. Y. 487, and Penfield v. Village of New Rochelle, 18 App. Div. 83, 88; affd. on opinion below, 160 N. Y. 697.)

The appellants claim that the learned trial justice erred in excluding an alleged conversation between the defendant Philip Simon and the plaintiff’s intestate as precluded by section 829 of the Code of Civil Procedure. ¡None of the conversations testified to by plaintiff’s witnesses related to the excluded, conversation, and the contract for the sale of the property was not made at the time of the excluded conversation. Such conversation, therefore, would seem to have been a different communication or transaction from those referred to by the plaintiff’s witnesses, and was, therefore, properly excluded. (See Martin v. Hillen, 142 N. Y. 140; Rogers v. Rogers, 153 id. 343.) Even assuming, however, that such ruling was erroneous, I fail to see that the error has prejudiced the appellants’ case. Subsequently to the ruling the appellants were allowed without objection to testify fully with regard to many conversations with plaintiff’s intestate and would seem to have been allowed to establish as favorable a record as they could have done had the excluded question been allowed.

The judgment should be affirmed.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.  