
    Louis Stolitzky, Appellant, v. Peter Linscheid, Respondent, Impleaded with Christine Linscheid and Mary F. Kowalewsky.
    Second Department,
    April 4, 1912.
    Equity — suit to reform deed — pleading — counterclaim — mistake not mutual — failure to allege deceit of grantor.
    Where a grantor sues to reform a deed upon the ground that by mutual mistake the description included a larger amount of land than the parties intended to convey, a counterclaim which in substance alleges that the plaintiff grantor represented to the grantee that the lot was of the width described, and that in ignorance of the real fact and relying upon the grantor’s representation the grantee agreed to purchase the property for a certain sum, which exceeded the value of the land because it was of a less width than represented, whereby the grantee was damaged in a certain sum, tends to diminish or defeat the plaintiff’s recovery and states a good cause of action.
    To justify a decree reforming an instrument upon the ground of mistake, the mistake must be mutual, so that the instrument fails to represent the actual intention of both parties. Hence, there can be no reformation of a deed alleged to cover more land than the grantor intended to convey if in fact the grantee intended to purchase the amount covered by the description, for in such case there is no mutual mistake.
    The counterclaim aforesaid interposed in a suit for the reformation of a deed is insufficient to sustain a recovery of money damages upon the ground of deceit where there is no allegation that the grantor in stating the size of the lot knew that the statement Was false or, being ignorant of .the truth and indifferent to the facts, made the statement recklessly without heed to the injury which might ensue. ■
    Appeal by the plaintiff, Louis Stolitzky, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of October, 1911, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to a counterclaim of the defendant Peter Linscheid.
    
      Nathan April [Harry Cook with him on the brief], for the appellant.
    
      James Troy, for the respondent.
   Burr, J.:

In the spring of 1909 plaintiff executed and delivered to defendant Peter Linscheid a deed purporting to convey a lot of ground in the borough of Brooklyn, situated on the southerly side of Prospect avenue, beginning at a point eighty feet westerly from Sixth avenue, and being twenty feet wide in front on Prospect avenue and in the rear, and ninety feet four inches in depth on each side.

This action is brought to reform said deed.

The complaint alleges that it was the intent of the parties, the one to sell and the other to purchase, a lot of ground, with the house thereon, known as and by the street number 296 Prospect avenue; that said lot was only eighteen feet wide instead of twenty feet wide, and that the easterly boundary line thereof began at a point eighty-two feet distant from Sixth avenue, instead of eighty feet, and that by mutual mistake the deed was executed in form as above described.

Defendant answered pleading various defenses and denials, and setting up by way of counterclaim that at the time that the agreement for the purchase and sale of the property was entered into, plaintiff stated and represented to him that the lot was twenty feet wide and that the house upon the same was of the full width of the lot; that in ignorance of the real fact, and relying upon the statements and representations of the plaintiff, he agreed to purchase said property and to pay for the same the sum of $1,850, subject to an outstanding mortgage thereon for the sum of $3,850; that in fact the house upon the said lot of land did not exceed in width eighteen feet, and that by reason thereof the property was not worth the sum which he agreed to pay and did pay, and that by reason thereof he had been damaged in the sum of $1,000, for which sum he demanded recovery of plaintiff.

To this counterclaim plaintiff demurred upon the ground that it did not tend to diminish or defeat his recovery and did not state facts sufficient to constitute a cause of action. From an interlocutory judgment overruling the demurrer, plaintiff appeals.

That the counterclaim tends to defeat or diminish plaintiff’s recovery seems clear. In order to justify a judgment reforming an instrument on the ground of mistake, the mistake must be mutual and the paper as finally executed and delivered must fail to represent the actual intention of each of the parties thereto. (34 Cyc. 915; Avery v. Equitable Life Assurance Society, 117 N. Y. 451.) In his counterclaim defendant alleges that he intended to purchase a lot twenty feet wide, and supposed that he was purchasing a lot of such dimensions and that the deed as executed expresses his intention. Whatever plaintiff’s intention or understanding may have been, it is clear that there was no mutual mistake, and unless that is established plaintiff’s recovery will be wholly defeated.

But we are of the opinion that the facts stated in the counterclaim are insufficient to sustain an action for damages for deceit, because there is no allegation that plaintiff when he made the statement as to the size of the lot and of the house thereon, knew that such statements were false, or, in ignorance of the truth or falsity thereof and indifferent as to the fact, made such statement recklessly, paying no heed to the injury which might ensile. Such an allegation, or an allegation that the statement was fraudulently made, is absolutely essential. (Bradb. Rules Pl. 329; Kountze v. Kennedy, 141 N. Y. 124; McIntyre v. Buell, 132 id. 192; Inderlied v. Honeywell, 88 App. Div. 144;; Carr v. Sanger, 138 id. 32). For anything that appears in the statement of facts constituting the counterclaim, plaintiff in good faith and in an honest, although mistaken. belief as to its true dimensions represented to defendant that the house was twenty feet in width instead of eighteen feet. It may be Urged that this is improbable in view of the fact that plaintiff now claims that he never intended to convey a lot more than eighteen feet wide, but the sufficiency of the counterclaim must be determined by the allegations contained therein and so tested within the rule above ¡stated, these are insufficient.

The interlocutory judgment should be reversed, with costs, and plaintiff ’s demurrer to defendant’s counterclaim sustained, with costs, with leave to defendant to amend his answer within twenty days after service of a copy of the order to be entered herein upon payment of the costs of said demurrer and of this appeal.

Jeaks, P. J., Hirschberg, Woodward and Bich, JJ., concurred.

Interlocutory judgment reversed, with costs, and plaintiff’s demurrer to defendant’s counterclaim sustained, with costs, with leave to defendant to amend his answer within twenty days after service of a copy of the order to be entered herein upon payment of the costs of said demurrer and of this appeal.  