Botsford v. McLean
New York Supreme Court
THIS was an appeal from a judgment entered upon the report of á referee upbn a second trial. The action was brought to reform two certain promissory notes given by the defendants to the plaintiff, so as to make them bear interest. The grounds on which the relief was sought were mistake and fraud. When the case was formerly before the court, the judgment in favor of the plaintiff was set aside because the referee had not found that certain facts existed.
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THIS was an appeal from a judgment entered upon the report of á referee upbn a second trial. The action was brought to reform two certain promissory notes given by the defendants to the plaintiff, so as to make them bear interest. The grounds on which the relief was sought were mistake and fraud. When the case was formerly before the court, the judgment in favor of the plaintiff was set aside because the referee had not found that certain facts existed. (See 42 Barb. 445, 8. 0.) On the second trial before the referee, the plaintiff rested on the pleadings, and claimed to be entitled to…
1Opinion of the Court
By the Court, E. Darwin Smith, J.
It is a familiar and well settled doctrine that where, through mistake or fraud, a contract or conveyance fails to express the actual agreement of the parties, it will be reformed by a court of equity so as to conform to such agreement and carry into effect the real intent of the contracting parties. This doctrine was fully established in this state in the case of Gillespie v. Moon, (2 John. Ch. 585,) in an opinion of Chancellor Kent, which Chief Justice Spencer, in Lyman v. The United Insurance Co. (17 John. 377,) in the Court of Errors, said “ commanded his…
2Cases cited4 opinions
- Wiswall v. HallNew York Court of Chancery · 1831
- Coles v. BowneNew York Court of Chancery · 1844
- Rider v. . PowellNew York Court of Appeals · 1863
- Botsford v. McLean & McPhersonNew York Supreme Court · 1864
3Cited by21 opinions
- Albany City Savings Institution v. . BurdickNew York Court of Appeals · 1881
- Pierce v. . PierceNew York Court of Appeals · 1877
- Kilmer v. . SmithNew York Court of Appeals · 1879
- Smith v. JordanSupreme Court of Minnesota · 1868
- Wilson v. WilsonNevada Supreme Court · 1896
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