#### AREND v. LAING.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Reformation of Contract—Action by Vf.ndor.

A vendor may sue to reform the contract of sale on the ground of mutual mistake.

Appeal from special term.

Action by Lewis F. W. Arend against Fremont C. Laing for reformation of contract and specific performance. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Philip A. Laing, for appellant

E. L. Parker, for respondent

DWIGHT, P. J.

The action was by the vendor for the reformation and specific performance of an executory contract for the sale of land. The reformation desired is in the statement of the number *538of acres contained in the premises to be conveyed, and in the total price, and the installments, to be paid therefor. In the contract the premises are described (1) by four boundaries,—two of which are public highways, one is a lot line, and the other the land of an adjoining proprietor; (2) by name,—“Known as the ‘J. Besch Farm;’”¡ and (3) as the premises intended to be conveyed by a certain deed,citing the book and page of its record in Erie county. They are-also described as containing 50.709 acres of land. The price1 to be paid is stated at $875 per acre. The total price is computed, accordingly, at $44,370.37, and the contract specifies the times and mode of payment of the several installments into which that sum is divided. After setting out the contract, the complaint alleges that the' statement therein that the premises contain 50.709 acres of land was by the mutual mistake of the parties,, whereas, in fact, they contain only 46.713 acres; and the relief sought is that the contract be reformed so as to conform to-the fact in this respect, and that the amount of the total price, and of the several installments, to be paid, be correspondingly reduced; and that the plaintiff have judgment for the-specific performance of the contract as so reformed. The complaint also alleges default on the part of the defendant, and that, upon the discovery of the mistake of fact above mentioned, the plaintiff informed the defendant thereof, and offered to reduce, proportionately, the purchase-price and the several payments mentioned in the contract, and he-repeats the same offer by his complaint. The defendant demurred-on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was no doubt properly overruled.

Equity accords the relief of specific performance to the vendor in an executory contract for the sale of land, on the principle of mutuality. The vendee in such a contract, but for that relief in equity, would be without adequate remedy in case of refusal of his vendor to convey; and, since he may have his suit for specific performance, the vendor must be equally entitled to it, notwithstanding his action at law for the purchase money. And so, in respect to reformation, the. vendee may, undoubtedly, have a mutual' mistake in respect to the number of acres to be sold at a certain price per acre—and, consequently, in the price to be paid for the whole—corrected by a- reformation of the contract; and so, on the principal of mutuality, the vendor who desires to perform his contract according to its intent may have the same relief in equity upon-: offering at the same time to do equity by making a corresponding reduction in the price to be paid to him. Hill v. Buckley, 17 Ves. 394; Voorhees v. De Meyer, 2 Barb. 37; Paine v. Upton, 87 N. Y. 327, 331, 333. In this case there would seem but little question, on the face of the contract, as to the intent of the parties, viz. to con-tract for the purchase and sale of the land contained within the four boundaries mentioned, known as the “J. Besch Farm,” and conveyed by the recorded deed to which reference was made; and that the exact quantity of land so contained was a secondary consideration, and to be controlled by the previous descriptions. It is also *539to be inferred from the price per acre- agreed to be paid that the land so purchased was no longer to be employed as a farm, or, for any purpose, in a single parcel, but was to be plotted and sold in city lots. And in this there is some reason, at least, for supposing that the precise number of acres was not an essential element of the transaction. We think there is no serious criticism to be made of this complaint on the ground stated. The judgment appealed from must be affirmed, with costs, but with leave to defendant to wi hdraw demurrer and answer over in 20 days, on payment of costs of the demurrer and of this appeal. All concur. So ordered.