Ryan v. Boucher

• Decision Date: 20 October 1988
• Citation: 534 N.Y.S.2d 472,144 A.D.2d 144
• Parties: James A. RYAN, Respondent, v. Gerald L. BOUCHER, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 472

534 N.Y.S.2d 472

144 A.D.2d 144

James A. RYAN, Respondent, v.Gerald L. BOUCHER, et al., Appellants.

Supreme Court, Appellate Division Third Department.

Oct. 20, 1988.

Francis J. Roche, Hudson, for appellants.

Couch & Deily(John Couch, of counsel), Hudson, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court(Fromer, J.), entered November 16, 1987 in Columbia County, upon a decision of the court, without a jury, in favor of plaintiff.

In February 1986, defendants entered into a contract to sell to plaintiff certain real property located in the Town of Kinderhook, Columbia County.The agreement was drawn on a realtor's standard form contract.The form contained various blanks, including one for the property description.In this blank, defendants' realtor inserted the following description of the property:

[O]n the west by lands of Vissher, on the south by tree line base of hill, east by dead tree on Novak rd, north by road * * *.

There was no indication of the number of acres involved in the transaction.

After the contract was signed, defendants had a survey done of the property.Plaintiff received a copy of the survey and, after reviewing it, believed that the southern boundary shown on the survey was not in compliance with the description in the contract.The amount of acreage to be sold as reflected in the survey was approximately 16 1/2.However, the amount of acreage involved using the tree line which plaintiff contends the contract provided as forming the southern boundary is approximately 23 1/2.Plaintiff commenced an action for specific performance requesting that the conveyance be in compliance with the contract.In response, defendants sought rescission of the contract based upon a purported mutual mistake of fact.

A nonjury trial followed.After considering the testimony and exhibits, Supreme Court concluded that there had not been a mutual mistake of fact and that the tree line as purported by plaintiff constituted the parcel's southern boundary.Plaintiff was thus awarded specific performance.Defendants appeal.

Defendants contend that Supreme Court erred in not finding a mutual mistake of fact.A contract entered into under a mutual mistake of fact is voidable under the equitable remedy of rescission (Coffin v. City of Brooklyn, 116 N.Y. 159, 22 N.E. 227;Schmidt v. Magnetic Head Corp., 97 A.D.2d 151, 159, 468 N.Y.S.2d 649).The mutual mistake must exist at the time the contract is entered into (Raphael v. Booth Mem. Hosp., 67 A.D.2d 702, 703, 412 N.Y.S.2d 409), and it must be substantial (Brauer v. Central Trust Co., 77 A.D.2d 239, 243, 433 N.Y.S.2d 304, lv. denied52 N.Y.2d 703, 437 N.Y.S.2d 1026, 418 N.E.2d 1327).An objective test is used to determine whether there has been a mutual mistake (First Regional Sec. v. Villella, 84 Misc.2d 790, 791, 377 N.Y.S.2d 424, aff'd.88 Misc.2d 81, 388 N.Y.S.2d 829).

Here, defendants contend...