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never been suggested that this imposed the common-law rules of evidence upon equity trials, and required equity judges to protect their trained minds from the danger of influences which might affect the untrained minds of jurors, and from which the common-law judge protects jurors by rulings upon evidence. Any decision of an appellate court which imposes such rules on courts of equity would seem to be judicial legislation.

The only question concerning the applicability of the commonlaw rules of evidence that ever arose in equity, was whether, when an issue of fact was sent thereout to a common-law court to be tried by a jury, and the verdict and proceedings were certified back, the errors of the common-law judge in admitting evidence had to be regarded on the question of allowing the verdict to stand, the same as in the common-law courts; but it was held otherwise, and that the evidence was to be considered as though taken in chancery, or the couru of equity. This rule, to do away with all question, was adopted in our Code of Civil Procedure (section 1003) viz., that when an issue of fact in an equity suit is sent to a jury, "an error, in the admission or exclusion of evidence, or in any other ruling or direction of the judge, upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion, that substantial justice does not require that a new trial should be granted.” Strange indeed it would be if while this is the rule in respect of an issue of fact sent out of equity to a jury, it is not the rule if such issue be tried, or of the issues which are tried, before the equity judge himself, but that in the latter case the technical common-law rules of evidence apply. Post v. Mason, 91 N. Y. 549, 43 Am. Rep. 689. There would still seem to be some question about the whole matter, for it is not likely that such a striking inconsistency can be continued.

I have called attention to this matter, and discussed it to some extent, only to suggest to counsel for the plaintiff whether the stenographer's minutes of the trial should not be submitted to me, so that I can carefully review my rulings on questions of evidence, and if I find errors, declare a mistrial, or follow whatever course this new application of the common-law rules of evidence to equity trials requires, for some new practice must be devised to meet it. Since the first court of equity sat the undisputed rule has been that "in equity cases it will be presumed that the trial judge disregarded incompetent or irrelevant testimony; and errors in the admission of such evidence do not afford ground for reversal where there is sufficient testimony to support the decree." Jones on Ev. $ 900. It may be noted in passing that while this quotation from a recent text-book expresses the whole matter, its reference to "errors" in the admission of evidence in equity is inadvertent, for there are no such errors in equity; the learned writer means what would be errors in a common-law court. But the decision in the Robinson Case is the very contrary of the rule just quoted. There the learned trial judge even took the supererogatory pains in his opinion, findings and judgment to declare that he discarded the evidence on which the reversal was placed, and based his findings on the other evidence in the case; but even that did not save the judgment, it being deemed an injustice that the party should be deprived of

and 118 New York State Reporter the technical advantage of his exception in the game of lawsuit. That there was other evidence to sustain the findings was a thing not to be considered. The four cases cited by the learned court (Blashfield v. Telegraph Co., 147 N. Y. 520, 42 N. E. 2; Meyers v. Betts, 5 Denio, 81; Allen v. Way, 7 Barb. 585; Bloss v. Morrison, 47 Hun, 218) turn out on inspection to be common-law cases. That they were tried before referees does not matter, for when you get into a common-law court the rules of evidence of that court apply, whereas they never existed in a court of equity.

Judgment for the plaintiff.

BRAUN v. HOTHAN. (Supreme Court, Appellate Division, Second Department. October 16, 1903.) 1. APPEAL-FINDINGS ON CONFLICTING EVIDENCE-Review.

A finding by the court, in an action tried without a jury on conflicting evidence, will not be disturbed on appeal, unless it has been improperly

affected by the errors assigned by appellant. 2. SAME-EVIDENCE-COPIES-HARMLESS ERROR.

In an action on a contract, error in the reception in evidence of a carbon copy of the contract, over defendant's objection, was harmless, where the original contract, signed by both parties, was subsequently placed in evidence by defendant, and it appeared on inspection that plaintiff's exhibit

was a faithful reproduction of defendant's. 3. SAME--EXPERTS.

Where, in an action to recover on a written contract for a tombstone, there was no controversy as to what had been done or left undone, but only as to whether one item of work which had not been done should have been done, error, if any, in the court's permitting an expert to testify that the work as finished was in all respects in accordance with the contract and de

sign, was harmless. 4. SAME-CONTRACTS-FINDINGS.

Where a contract for the construction of a monument did not call for a monument similar in pattern and drawing to any other, but for a monument of a particular design, a finding in an action for the price that plaintiff was not bound to furnish a monument in size and design similar to another in the cemetery, to which defendant called plaintiff's attention before the contract was signed, was proper. Appeal from Municipal Court of New York.

Action by Joseph Braun against August Hothan. From a municipal court judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HIRSCHBERG, JENKS, and HOOKER, JJ.

John B. Roesch, for appellant.
J. Bohmbach, for respondent.

HIRSCHBERG, J. The plaintiff has recovered judgment for the balance due under a written contract for the construction and setting of a tombstone and cover. The execution of the contract by the parties is conceded, but the defendant denies that the design of the work as completed is in accordance with the contract. The court has found in favor of the plaintiff upon conflicting evidence, and the result should not be disturbed, unless it has been improperly affected by the errors assigned by the appellant.

The court received in evidence a carbon copy of the contract, over the defendant's objection. Assuming that this was error (Reilly v. Lee (Sup.) 16 N. Y. Supp. 313), it was harmless, inasmuch as the original contract, signed by both the parties, was placed in evidence by the defendant, and it is evident on inspection that the plaintiff's exhibit is a faithful and accurate reproduction of the defendant's. Each party submitted a design, which each claimed was the one contemplated by the contract, and the conclusion reached by the trial court that the plaintiff's was the one on which the estimate was based is sufficiently supported by the evidence. The plaintiff testified that the work, as finished and set up, was in all respects in accordance with the contract and design, and in this he was corroborated by an expert called as a witness in his behalf. It is urged that the reception of the testimony of the expert was error. Assuming this to be so, the error was harmless, for there was no controversy between the parties as to what had been done or left undone, but only as to whether or not one item of work which had not been done should have been done. The learned counsel for the defendant, in objecting to the evidence of the expert, stated: “There is no question about the work. The question is in relation to this one particular item in the contract, which we allege he has not done." The defendant failed to clearly establish what the "one particular item” was. The plaintiff's evidence tended to show that it related to some molding or beading which the defendant claimed should have been cut upon the monument, and which the plaintiff, while denying that he was under obligation to supply it, nevertheless agreed to do so if the defendant would make him a payment on account. In this respect the finding of the trial court is justified in the adoption of the plaintiff's version as in harmony with all the circumstances and surroundings of the transaction.

The defendant further claimed that the monument was to be in size and design similar to another one in the cemetery, to which he called the plaintiff's attention before the contract was signed. The contract, however, clearly does not call for a monument similar in pattern and drawing to any other, and I think in this respect, also, the finding of the court favorable to the plaintiff's contention is in accord with the preponderance of the oral evidence.

The judgment should be affirmed.
Judgment of the Municipal Court affirmed, with costs. All concur.

and 118 New York State Reporter (41 Misc. Rep. 285.) DOUGHERTY et al. v. LION FIRE INS. CO., LIMITED, OF LONDON, et al.

(Supreme Court, Special Term, Columbia County. August, 1903.) 1. INSURANCE POLICY-REFORMATION-MISTAKE.

An insurance policy will not be reformed for mistake where the evidence is that the mistake was that of one person only, and was not mutual.

Action by Rose E. Dougherty and others against the Lion Fire Insurance Company, Limited, of London, and others, to reform an insurance policy.

Amos Van Etten, for plaintiffs.
A. T. Clearwater, for defendant insurance company.
Harry H. Flemming, guardian ad litem for infant defendants.

COCHRANE, J. The evidence fails to make out a case for the reformation of the contract. It is fundamental that, to justify a court in reforming a contract on the ground of a mistake, such mistake must be one which is mutual and common to both parties to the contract. Plaintiffs claim that the defendant intended to issue the policy to them, and hence that the policy should be made to carry out that intent; and base such claim on the alleged statement of Rose E. Dougherty to Irving McCausland that her mother was dead. Irving McCausland, who was called as a witness by the plaintiffs, testified that when the policy was issued, he did not know or understand that Catharine Dougherty was dead. He had previously effected insurance for her in another company on the property in question, and seems to have assumed that there had been no change in ownership. I do not question the veracity of Rose E. Dougherty. But there was manifestly a misunderstanding between her and McCausland. Giving to the testimony of both witnesses its appropriate weight, the entire evidence fails to satisfactorily show that McCausland knew of the death of Catharine Dougherty, and without such knowledge on his part there was no mistake mutual or common to both parties, and hence no. basis for a reformation of the policy.

To justify a reformation of a written contract on the ground of mutual mistake, the evidence should be clear, positive, and of the most convincing character. Christopher & Tenth St. R. R. Co. v. Twenty-Third St. R. Co., 149 N. Y. 51, 43 N. E. 538; Allison Brothers' Co. v. Allison, 144 N. Y. 30, 38 N. E. 956; Southard v. Curley, 134 N. Y. 148, 31 N. E. 330, 16 L. R. A. 561, 30 Am. St. Rep. 642; Greene v. Smith, 13 App. Div. 465, 43 N. Y. Supp. 610; Weed v.. Whitehead, i App. Div. 195, 37 N. Y. Supp. 178; Johnstown Mining Co. v. Butte & Boston Co., 60 App. Div. 347, 70 N. Y. Supp. 257; Stern v. Ladew, 47 App. Div. 340, 62 N. Y. Supp. 267.

In Weed v. Whitehead, I App. Div. 195, 37 N. Y. Supp. 180, it was said:

"The authorities all require that parol evidence of a mistake in a written contract must be most clear and convincing. The language of some of the

1. See Insurance, vol. 28, Cent. Dig. $ 266.

cases is the strongest possible. Courts of equity do not grant the remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of error. 2 Pom. Eq. Juris. $ 859; 1 Story, Eq. Juris. $ 157; Southard v. Curley, 134 N. Y. 148, 31 N. E. 330, 16 L. R. A. 561, 30 Am. St. Rep. 642, and cases cited in the opinion. The utmost that can be determined from the testimony before us is that the matter is left in doubt. But a court of equity would not be justified, upon such evidence, in granting the relief which the respondents seek."

In Johnstown Mining Co. v. Butte & Boston Co., 60 App. Div. 347, 70 N. Y. Supp. 258, it was said:

"It is a well-settled rule of law that before a person becomes entitled to the reformation of a contract upon the ground of mistake, it must be made clearly to appear by unequivocal and satisfactory proof that a mistake was made."

Tested by this rule, the plaintiffs have failed to show a mistake on the part of the defendant. It issued just the policy it intended to issue. The court may only reform a contract so as to make it conform to the intention of both parties. The evidence does not justify a finding that defendant or its agent purposed anything else than to insure Catharine Dougherty. "To enable the plaintiffs to maintain this action, it was incumbent upon them to show that there was a mistake; that it was mutual, and one made by all the parties to the agreement, so that the intention of neither was expressed. If it was such a contract as one of the parties intended to make and the one it understood the others also intended to make, the court had no power to reform it (Paine v. Jones, 75 N. Y. 593), as, under such circumstances, it would be making a new contract for the parties, and unjust to the ones who made no mistake." Christopher & Tenth St. R. R. Co. v. TwentyThird St. R. Co., 149 N. Y. 58, 43 N. E. 539.

In McCoubray v. St. Paul Fire & M. Ins. Co., 50 App. Div. 418, 64 N. Y. Supp. 113, it was said:

"It is evident, on uncontroverted proof, that Winter, the local agent of the defendant, and the one through whom the policy was obtained, was informed when it was issued that the property belonged to the plaintiff, and was instructed to make out the policy in her name; that, when his attention was called to the erroneous use of Joseph's name, he promised to have the error corrected, and that that promise was made on several subsequent occasions. In such circumstances equity requires the reformation of the policy."

The proof here is very different from the "uncontroverted proof” in that case, and is insufficient to meet the burden which the law places on the plaintiffs. To grant the relief sought in this case would not be to conform the contract to the intention of both parties to it, but would be to create a new contract, which the defendant did not intend to make.

Complaint dismissed, with costs to the defendant insurance company.

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