
    National Gum and Mica Company and The A. Wilhelm Company, Respondents, v. Century Paint and Wall Paper Company and William A. MacCormack, Appellants, Impleaded with Darsa J. Densmore and N. Charles Barron, as Administrator, etc., of Ernest R. Barron, Deceased, Defendants.
    First Department,
    January 25, 1907.
    Pleading — amendment of answer to ask reformation of contract.
    When in an action there is a dispute as to the meaning of a contract involved, the defendant should be allowed to amend the answer so as to ask a reformation of the contract conforming it to the intention of the parties.
    When the effect of the granting of such amendment will be to take the case from the calendar and delay the trial, the amendment should be conditioned upon the payment of all costs to date.
    Appeal by the defendants, the Century Paint and Wall Paper Company, and another, from an order of the Supreme Court made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of November, 1906, denying. the said defendants’ motion for leave to serve amended answers.
    
      Henry G. K. Heath [Glande Giynoux with him on the brief], for the appellants.
    
      Jerome H. Such \Edwa/rd A. Alexander with him on the brief], for the respondents.
   Laughlin, J.:

It appears that the appellants at the time the contract was executed objected to its phraseology and asked that it be amended in the particulars in which they now seek to have it reformed, that.its meaning might .be clear,, but that "they" were induced to refrain from insisting upon'such amendment upon representations made in behalf .of the .plaintiffs that the contract,.as drafted, did'clearly express the . agreement-, as' to which -there was no dispute and that the proposed amendment was not necessary. The appellants, in their -pleading which they seek to amend, admitted the execution of the agreement-and that they do not now deny,, but they charge that the plaintiffs have taken advantage of the phraseology which the appellants at the time of the execution of thecontract deemed ambiguous, and now contend for,a construction.contrary to'the agreement .as actually intended by both parties at the time. They claim that the plaintiffs now contend, for an erroneous construction, of which, until the recent decision of the Special Term in Kings county in ' the case of Kalbacli against them, they did not deem the contract fairly susceptible. They now, however, ask to have the contract reformed to clearly express the agreement which the parties intended to make by the contract as. drafted. They are not guilty of laches and they should be afforded an opportunity to" establish, if they can, facts which will warrant, the court in reforming the contract before ■they are obliged to comply therewith. It is doubtful whether the contract is susceptible of the Construction'-for which the plaintiffs contend, but in the circumstances the appellants should hot be obliged to run the risk of a favorable construction' and should be permitted to have .their pleadings' in .such form that they may, if necessary, demand the reformation of the contract.. Since, however, the effect of granting the application’will be to take the case off the. calendar and-delay the trial of the issue and to present a new issue, the amendment should only, be granted upon payment of all.costs of-the action to date;-

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted upon payment of all costs to date. . • '

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred. '•

Order. reversed, with ten dollars costs and disbursements, and motion granted on conditions stated-m opinion; Settle order on notice.  