
    Edward J. Markowitz, Appellant, v. Emil Messner, Respondent.
    (Supreme Court, Appellate Term,
    October, 1896.)
    Money paid by mistake — Action at law — Equity — Reformation.
    After partners had agreed 'to dissolve, and a written contract had been made by which the plaintiff bought all of the assets, including bills receivable, of which a list was prepared which was stated to be correct in every respect, the plaintiff discovered that one of the debtors named, in the list had made an assignment before the agreement was executed, and he brought an action at law to recover what he had paid for that account, upon the ground that the payment had been made by mistake. Upon the trial he provéd that it was. agreed that only good accounts should be included in the list, and that the defendant partner had stated to the plaintiff when the list was made out, that all the accounts in it were collectible. Held, that the plaintiff had no right to maintain an action at law, as the money in question was not paid by mistake, but Was paid in pursuance of the written agreement of dissolution. That his remedy, if any, was in equity to reform the contract by striking out the account in question, so that it should not pass under the transfer of assets, but should remain as a subject of accounting between the parties.
    Appeal by the plaintiff- from a judgment dismissing the complaint rendered by the Ninth District Oourt.
    Malcolm R. Lawrence, and Lawrence, Semple & Clark, for appellant.
    Henry L. Scheuerman, for respondent.
   Daly, P. J.

The plaintiff and defendant, who had been co-partners, agreed upon dissolution, that the plaintiff should buy all the assets, paying 50 per cent, of the value thereof to the defendant, a deduction of 1 per cent, being made from the face value of such assets as consisted of outstanding accounts receivable, A list of such accounts was prepared, and was included in the written agreement of dissolution, which also proved that the statement of assets was correct in every respect.”

The plaintiff subsequently discovered that the debtor, in one of his accounts, described in the list as J. Schoenfield, $180,” had made an insolvent assignment before the execution of the agreement; and this action is brought to recover back the sum paid for the account, on the ground that it had been paid by mistake. Evidence was received, under objection, that it was agreed between plaintiff and defendant, who, it seemed, had more to do with the books than the plaintiff, that only good accounts should be included in the list, and that the defendant stated to the plaintiff when the list was made up, that all the accounts in it were collectible.

Granting the facts to be as the plaintiff claims, he has no action at law for the recovery of the sum paid for Schoenfield’s account. It was not paid by mistake, but in pursuance of the written agreement of dissolution. If the testimony he produced established that the parties to that agreement intended that only collectible accounts should be covered by the contract and inserted in the list; and that there was a mutual mistake as to this particular account, it furnishes ground for reformation of the contract by striking out the account in question so that it should not pass under the transfer of assets, but remain a subject of accounting between the copartners. The mistake, if any, was in failing to draw the contract in conformity with the understanding of the parties, and the relief of the plaintiff, if any, is in equity, where his damages can be recovered, if his equity is established. We do not, of course, express any opinion upon the sufficiency of the testimony offered. This view renders unnecessary a discussion of the other points ably argued in the briefs. It is clear that the effort of the plaintiff was not by his testimony, to explain the terms of his contract, but rather to reconstruct it. To do this he must go into equity.

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  