#### The Manhattan Wrecking & Contracting Co., Respondent, *v.*Otto M. Eidlitz and Robert James Eidlitz, Appellants.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Mistake — reducing agreement to writing — correction of mistake — contracts.

Contracts — breach of — evidence — mistake.

A .mistake in reducing an agreement to writing may be corrected.

Where, in an action to recover for an alleged breach of contract for the demolition of buildings on certain premises, by which contract the materials in the buildings were to become the property of plaintiff, it appears that the contract was indefinite and vague, if not contradictory, as to precisely what houses it covered, and the issues between the parties relate solely to five occupied houses, a diagram, of which plaintiff knew when it made its bid, is admissible to show that the buildings concerned were only those shown on said diagram, and that the numerical description of the houses in the proposals submitted for plaintiff’s signature was a clerical error on defendants’ part.

It was not necessary that the mistake should have been mutual to enable defendants to avail themselves of the defense that the five occupied houses were included, by mistake, in the contract.

*397Appeal by defendants from a judgment of the City Court of the city of New York in favor of the plaintiff, entered upon a verdict, and also from an order denying the defendants’ motion for a new trial on the minutes.

Eidlitz *&*Hulse (Martin A. Schenck and Frederick Hulse, of counsel), for appellants.

Feltenstein *&*Eosenstein (Moses Feltenstein, of counsel), for respondent.

Hotchkiss, J.

This action was brought to recover damages for the defendants’ alleged breach of a contract, whereby the plaintiff agreed to wreck or demolish the buildings upon certain premises in this city, by which contract the materials in the buildings were to become the property of the plaintiff. The facts appearing upon the trial were substantially as follows :

The property upon which the buildings were located belonged to the Society for Euptured and Crippled Children, and the defendants were the general contractors for the construction of a new building to be erected upon said premises.

On May 11,' 1911, plaintiff wrote to the society asking, “ who has charge of accepting estimates for demolishing the old buildings for *your new hospital located at J/Und and J$rd Street,*Oity, as we are desirous of submitting an estimate to you on this work ? ”

This letter was sent to the defendants, who, on May twenty-seventh, wrote to the plaintiff informing it that its letter of May eleventh had been referred to the defendants, and enclosing a *“*proposal form,” upon which the plaintiff was asked to submit its estimate.

A memorandum at the foot of this letter states that it contained “ three enclosures.” At the trial the defendants sought to prove that one of the enclosures was a diagram showing each of the old buildings to be demolished, by metes and bounds and also by lot numbers, by which diagram the several houses appeared to be numbered from 303 to 325, both inclusive, East Forty-second street, and from 304 to *398*322*East Forty-third street, twenty-two in all, and no others. This evidence was objected to and excluded “ on the ground that all prior negotiations were merged in the agreement.”

The said “ proposal form,” which contained minute details as to how the work was to be performed, was very shortly after its receipt by the plaintiff filled up, signed and delivered to the defendants. In said form the structures enumerated were “ the buildings * * * now situated at 304 to *332*East 43rd Street, inclusive, and 303 to 325 East 42nd Street, inclusive,” twenty-seven in all. Having accepted the plaintiff’s proposal, a formal contract dated June 1, 1911, was entered into between the plaintiff and the defendants. In this contract, the work to be performed was described as follows: “All demolition and removal of rubbish occasioned thereby, as per attached proposal for and at the building for The Hew York Society for the Belief of the Ruptured and *Crippled, 303 to 325 East 42nd*Street.” The proposal attached to the contract is the one signed by plaintiff, as aforesaid, but none of the enclosures contained in said letter accompanied such proposal.

Plaintiff’s president (Levenson) testified that, before submitting its proposal, he visited the buildings and discovered that all of the Forty-second street buildings, and ten of the buildings on Forty-third street, to wit: Hos. 304 to 322 inclusive, were vacant, in great disorder, and “ wide open,” “ everything ripped out,” but “ that was not so with reference to the other five buildings; * * * people lived in them.”

On or about June second, plaintiff began the demolition of the unoccupied buildings, but made no attempt to get possession of Hos. 322 to 332, inclusive, East Forty-third street, until some days thereafter, when, having occasion to deliver to defendants a surety bond required by the contract, Levenson called upon one of the defendants and asked: “ When do I get possession of the other five buildings ? ” There was a sharp conflict of testimony at this point between Levenson and Eidlitz. Levenson testified that Eidlitz told him that he did not know the buildings Were occupied; that he would communicate with the hospital people and find out *399when they could get possession. Eidlitz swore that he then called Levenson’s attention to the fact that the above five houses had -been included in the contract by mistake, and that there was no intention to deliver them for demolition.While the testimony is conflicting, as to details, it unquestionably appears that negotiations were then entered into between the parties for an adjustment of the difficulty, through the medium of a bond to protect plaintiff from what Levenson claimed would be its losses by reason of failure to deliver the five houses. These negotiations continued for some days, during which plaintiff went on with the work, but they -finally failed, and on or about June fifteenth plaintiff ceased work. On the trial plaintiff gave evidence tending to prove that it was ordered from the work by defendants, whereas, defendants’ testimony was to the effect that plaintiff abandoned the work voluntarily.

While pursuing the work, plaintiff had removed all or a considerable portion of the valuable salvage to be found in the interior of the unoccupied houses, and had, according to its own estimate, performed about twenty-five per cent, of the total work of demolition on the same houses.

The verdict was for the difference between the value of all the material in the twenty-seven houses and the cost of recovering the same, including the demolishing.

It will be noticed that the formal contract entered into between the parties is on its face indefinite and vague, if not contradictory, as to precisely what houses it covered. It says that the work is to consist of *“*all demolition and removal of rubbish * * * *as per*attached proposal *for and at*the buildings of the New York Society for the Relief of the Ruptured and Crippled, 303 to 325 East 42nd Street.” Strictly construed, this may mean that the work is to be performed at the enumerated buildings on Forty-second street in the manner set forth in the proposal attached. The proposal is not alluded to as describing the *locus*of the work but for the purpose of showing how it is to be performed. Yet, concededly, this was not the contract either party intended to make. The issue between the parties related solely to the five occupied houses on Forty-third street. Manifestly, *400the diagram was a material piece of evidence to show that plaintiff knew, when it formulated its bid, that the buildings concerned were only those shown by the diagram, and that the numerical description of them in the proposal was a clerical error on defendants’ part. To enable defendants to avail themselves of the defense of mistake it is not necessary that the mistake should be mutual. Kirchner v. New Home S. M. Co., 135 N. Y. 182, 189; City of New York v. Dowd Lumber Co., 140 App. Div. 358. The mistake in such a ease is not the basis of any attempt to reform the contract. As was said in Born v. Schrenkeisen, 110 N. Y. 55: *“*It is only where the action is to reform the agreement itself that it is required that it should be alleged in the pleading and proved on the trial that the mistake was mutual. Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected.”

It is argued, however, that the defense of mistake was not properly pleaded. The answer is certainly open to criticism in this as well as in other respects, and, had timely objection been taken, it might have been held insufficient to admit the excluded evidence, but in such case a motion to amend would have strongly addressed itself to the discretion of the trial court. As the objection was taken on another ground, the defect in pleading cannot be now urged.

Eor the reasons above given, • and without discussing the other questions raised, the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

Lehman and Page, JJ., concur.

• Judgment reversed, and new trial ordered, with costs to appellants to abide event.