(78 Hun, 462.)

#### CHRISTOPHER & T. ST. R. CO. et al. v. TWENTY-THIRD ST. RY. CO. et al.

(Supreme Court, General Term, First Department

May 18, 1894.)

1. Equity—Reformation of Contracts—Evidence.

A written contract will not be reformed on the ground of mistake, unless-there is a plain mistake, clearly made out by satisfactory proofs.

2. Pleading—Amendment—New Cause of Action.

Where the complaint in an action to reform a contract alleges that there was mutual mistake, a proposed amendment stating that there was mistake on the part of plaintiff and fraud on the part of defendant does not state a new cause of action. Per Parker, J.

8. Same—Harmless Error.

A refusal to allow such amendment is harmless error where the court finds that the contract sought to be reformed correctly states the agreement between the parties.

Appeal from special term, Hew York county.

Action by the Christopher & Tenth Street Railroad Company and others against the Twenty-Third Street Railway Company and others-*234for an injunction. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Affirmed.

The opinion of Mr. Justice O’BRIEN at special term is as follows:

This is an action brought to restrain defendants from running their cars on 14th street between 4th and 9th avenues. The facts show that, by chapter 514 of the Laws of 1800, the legislature granted to certain persons, who after-wards formed the Bleecker Street and Fulton Ferry Railroad Company, the right to build certain railroad routes in the city of New York, which included the route now in dispute. In 1870 the Bleecker Street Company leased to the 23rd Street Company its lines, as authorized by the act of 1860, and the franchises it had acquired under the act of 1873. In November, 1876, the 23rd Street Company leased, in addition to the right to run upon a railroad from the comer of Canal street and Broadway to the Fulton ferry, the route in dispute, commencing at the intersection of 14th street and 4th avenue, to 10th avenue, and thence along various streets south and west to the Christopher street ferry. This lease contained a formal clause of reservation, which is as follows: “And it is hereby understood and agreed that the party of the first part reserve to itself, its successors, lessees, and assigns, the use, in common with the party of the second part, of so much or such portions of the railroad track constructed, or to be constructed, on the streets, avenues, and routes hereinbefore mentioned as are necessary, proper, or convenient for the exercise and enjoyment of the other railroad rights, privileges, and franchises demised by such lease of January 10, 1886, and not included or intended to be demised by this lease; but, where the tracks hereby demised are to be used in common as aforesaid, all the parties using the same shall be bound to contribute their just, ratable proportion of the expenses of keeping the same in good repair and condition, such expenses to be adjusted in proportion to the number of cars run by each over the portion of the tracks so used in common.” The lease of January 10, 1876, referred to in this reservation, is that before mentioned from the Bleecker Street Company to the 23rd Street Company, which leases to the latter all the routes acquired under the act of 1860 and the act of 1873. The rent under the lease of the 23rd Street Company and Bleecker Street Company, which latter joined in the lease for the purpose of giving its consent thereto to the Christopher Street Company, was to be $7,000 a year. Pursuant to its provisions, the Bleecker Street Company built a railroad along 14th street from 4th to 9th avenues, the expenses of which were paid by the Christopher Street Company. Pursuant to the reservation quoted, the 23rd Street Company ran daily one car over that portion of the road in 14th street between 9th and 11th avenues which was part of the original line of the Bleecker Street Company, and which connected from 9th avenue and 14th street down Pludson street to Bleecker street. But, finding the 9th avenue route more desirable, it obtained a license from the 9th avenue road to run its cars on 23rd street down 9th avenue to 14th street. The Canal street branch—and, at the beginning, we might add the whole route demised—proved unprofitable, and the 23rd Street Company, after a large arrearage of rent had accrued, relinquished its claim to rent under the lease. In 1882 a new lease was made to the Christopher Street Company, which is Exhibit 2, annexed to the complaint. By this lease the Canal street branch was surrendered to the 23rd Street Railway Company, and the remaining rights and franchises—including the route in dispute—were retained. The rent was reduced to $2,000 a year. The reservation in favor of the 23rd Street Company, already quoted, was entirely omitted from this lease. When this lease was executed, in 1882. the route on 14th street had become profitable, and thereafter continued to increase in value down to 1884, when the lease now in dispute was executed and substituted in lieu of all former leases between the companies, which were expressly, by its terms, canceled and annulled. By the provisions of this last lease of 1884 the rent was increased to $2,500 a year, and the right was given to the Christopher Street Company to run its cars on 14th street to 11th avenue, being one additional block. The clause in this lease which is the subject of controversy in the present case reads as follows: “It being understood and agreed that the party of the first part (meaning the 23rd Street Company) shall also have the right *235to run and operate its cars upon and over the above-mentioned railroad and route in and along 14th street.”

The 23rd Street Company ran no cars on 14th street east of 9th avenue until December 2(5, 1890; but a claim was made by the holders of stock in that company in the latter part of 1889, or the early part of 1890, that, under the clause of the lease of 1884 last quoted, it had the right so to run its cars. In April, 1890, the Christopher Street Company leased its entire property to the Central Crosstown Railroad Company. The sole issue presented, therefore, is: Did the defendants and the Christopher and the 10th Street Company mutually agree that the reservation to the 23rd Street Company in 14th street should not extend east of 9th avenue, and was the clause reserving to the 23rd Street Company the use of 14th street from 4th avenue to 11th avenue inserted in the lease of 1884 by accident and mutual mistake? Although it was sought upon the trial to introduce the alternative charge that the Christopher and 10th Street Company was induced to accept the lease of 1884 through the fraud of the 23rd Street Company, this, in view of the disposition made of the motion to enlarge the scope of the complaint, which imputed no deception or misconduct to the defendants or their officers, need not be considered except to the extent that, if a finding upon the evidence could be had that fraud was practiced by the president of the 23rd Street Company, upon which the latter acted, there could thus be attributed to the company itself a mistake existed on the part of the Christopher and 10th Street road in determining under the complaint that it was a case of mutual mistake. In addition it was urged upon the trial that the reservation clause in the lease of 1884, under which the 23rd Street Company claimed the right to run its cars, did not confer such right, but that its very terms were ambiguous, and required the light of surrounding circumstances for the purpose of considering what the parties really meant by the language used, and that such surrounding circumstances, which were subsequently presented and shown by the evidence, would lead to the conclusion that no such right by the terms of the lease itself was conferred. This contention was disposed of upon the trial unfavorably to the plaintiffs, for the reason that the language used in .the reservation clause in controversy is plain and unambiguous, and, under All the decisions, it was the duty of the court to determine its construction. It is not disputed that if any doubt exists, or if any ambiguity is apparent, in order to determine the construction of an instrument, regard may be had to the situation of the parties and the surrounding circumstances, as well as the language of the instrument, for the purpose of arriving at the intention of the parties, where the intent is not clearly expressed. I can find, however, no ambiguity, and, as before stated, it seems to me that the language presents no question of doubt requirihg any testimony to determine what the parties intended by the language used. It is insisted, however, further, that, though the construction given upon the trial was right, upon the evidence adduced the construction now to be given to the instrument should be different. It is insisted that the *intention oí the*parties has been plain, that the mistake has been demonstrated, and the injustice of the literal construction shown. This suggestion does not commend itself as being sound in law, for the reason that the first question presented is what is the constniction to be given to the instrument itself, and this, in the absence of doubt or ambiguity, and in the presence of language plain and intelligible, is to be determined upon the face of the instrument. This, however, will lead us to consider what we regard as the real contest presented, as to whether the construction given to the instrument and tne intent of the parties, as determined by the language, was the result of accident or mutual mistake. Apart, therefore, from the construction given upon the face of the instrument, the plaintiffs, as I understand the contention, ask to reform the instrument and change its terms and language so as to prevent the lease itself from conferring any right upon the defendant upon 14th street east of 9th avenue. Before considering the evidence, it is well to have before us, though the principles have been many times stated and may now be regarded as well settled, the grounds upon which equity will interfere to reform a contract on the ground of mistake, and the character and nature of the proof necessary to establish such mistake in an action brought to reform a written instrument. “It is among *236the first principles of a court of equity to correct mistakes and prevent parties from being injured in tlieir property. * * *” 1 Story Eq. Jur. §§ 159-100. “A court of equity will not interfere to reform a contract on the ground of mistake, unless it is mutual, but a mistake on one side and fraud on the other will authorize a reformation.” Wells v. Yates, 44 N. Y. 529.

Again, as stated' by Folger, J., in Bryce v. Insurance Co., 55 N. Y. 240: “A mistake which will warrant a court of equity to reform a contract in writing must be one made by both parties to the agreement, so that the intentions of neither are expressed in it; or it must be a mistake of one party by which his intentions have failed of correct expression, or there must be fraud in the other party in taking the advantage of that mistake, and obtaining a contract with the knowledge that the one dealing with him is in error in regard to what are its terms.” While, therefore, a court of equity has the undoubted power to reform written instruments in cases of fraud, or accident, it is equally well settled that it is a power in the exercise of which “great caution should be observed.” As said in Mead v. Insurance Co., 04 N. Y. 453, in order to justify changing the language of an instrument, “it must be established that both parties agreed to something different from what is expressed in the writing, and the proof upon this point should be so clear and convincing as to leave no room for doubt.” In Ford v. Joyce, 78 N. Y. 618 (citing the case of Mead v. Insurance Co.), it was held that, “paroi evidence is admissible to show a mistake in a written agreement, though to justify a reformation of the instrument on that ground the mistake should be proved as much to the satisfaction of the court as if admitted.” These, and the Bartholomew Case, 34 Hun, 263, and Smith v. Knapp, 18 Wkly. Dig. 95, are authorities for the proposition that the parties seeking to reform a written agreement must establish the fact that there was a mutual mistake, not simply by a preponderance of evidence, but by such evidence as will show quite conclusively that a mistake has been made, and satisfy the court of such mistake beyond a reasonable doubt. Applying this rule to the case at bar, it remains to be determined whether the proof of plaintiffs is adequate and sufficient to establish the mutual mistake as alleged. The two principal facts sought to be established, from which the conclusion of mutual mistake is sought to be drawn, are the injury and damage resulting from the making of the lease of 1884, as compared with the rights held under the former lease, and the alleged misrepresentations made by those who were instrumental in securing the new lease, to the effect that the purpose and object thereof, so far as the Christopher Street Company was concerned, were to secure a more favorable lease. There is no question but that the statement was not only made at the meet'ngs, but was included in the resolutions which led up to the appointment of the committee by the Christopher and 10th Street road; that the object and purpose of canceling the alleged lease was to secure a more favorable one. It is also beyond dispute upon the facts that the lease of 1884, as finally executed between the companies, was one less favorable. The most that can be concluded from such evidence, in its most favorable aspect to plaintiffs, is that the inducement to the negotiations, on the part of the Christopher and 10th Street Company, was the expectation of receiving a more favorable lease; winch expectancy, so far as the Christopher and 10th Street Company is-concerned, was never realized. Whatever may have been the inducing cause to open negotiations between the companies,—and, upon the evidence, two-views are presented, for, in addition to the one given for the action of the Christopher and 10th Street Company, it is claimed that the 23rd Street Company had, by mistake, surrendered by the lease of 1882 its rights to 14th-street, secured by the lease with the Christopher and 10th Street Company of 1876,—the issue here must be determined by the conclusion as to whether or not, in what subsequently transpired between the companies, a mutual mistake was made, or a mistake on one side and fraud on the other. It cannot be seriously urged that fraudulent representations were made, upon which the Christopher Street Company relied and acted in finally executing the lease of 1884, but it is insisted that the negotiations would not have been entered upon were it not that the Christopher Street Company might expect from the statements made to obtain a more favorable lease. If, induced by such representations, it had canceled the lease of 1882, and were here seeking, in. the ab*237sence of a new agreement, to have the same restored and revived, there might be much force in this argument. But whatever the inducing cause, if, after taking the subject up, the companies deliberately made a new agreement, how can the latter be affected or destroyed by the circumstance that the favorable results anticipated were not realized? That this is the only true view must be evident if we briefly refer to what was the situation of the companies after their first contract or lease in 187G. Under this the 23: d Street Company had reserved the whole of the 14th street route, and thereby had the right to make connections with other railroads crossing 14th street, and, if it became profitable, to build the route from Bleecker street through private property, and through Lafayette place to Eighth street, and through other streets back again to 14th street and 4th avenue. If, as now insisted by the plaintiffs, the fact that the Christopher and 10th Street Company under the lease of 3884 got the worst of the bargain is a controlling fact in demonstrating that a mistake was made, or if it is to be concluded from _this_ fact alone that the directors of the Christopher and 10th Street Company in giving up the exclusive right to 14th street, which they held under the 1882 lease, were recreant to their trust, and violated their duty as directors, what answer is to be given to the suggestion that a similar process of reasoning would apply to the failure of the directors of the 23rd Street Company, when in 1812 they gave up the rights which they had in 14th street, and which would have prevented them, if it ever became desirable or profitable, from using the other portions of the route indicated which they held by virtue of the lease from the Bleecker Street Company? If it was a wrong on the part of the directors of the Christopher and 10th Street Company to surrender their rights secure 1 by the 1882 lease, what are we to say of the action of the directors of the 23rd Street road in their surrender of the rights to build the route obta'n "d from the Bleecker Street Company, and which, in their grant to the Christopher and 10th Street Company, they had reserved in the lease of 1870? What, undoubtedly, in view of the mutual and friendly relations between these two companies, was sought to be done, was to act with a spirit of fairness and concession wherever their interests were in conflict. This is shown by the manner in which, throughout, the 23rd Street Company down to 1884 treated the Christopher and 10th Street Company. But, as before stated, these considerations aid but little in reaching a conclusion upon the sole issue here presented,—as to whether, in the negotiations between the two companies, advantage was taken by one of the mistake of the other, or both were equally mistaken as to the terms of the lease.

It is not my purpose to go over in detail all of the testimony, which is voluminous, nor to refer to all the grounds presented in support of the plaintiffs’ view, as I am of opinion that, apart from the other testimony, the conclusion arrived at is so strengthened and fortified by the actual occurrences subsequent to the appointment of the committees of the two roads, appointed to negotiate the terms of the lease, that a brief reference to those proceedings alone is required. In this connection, it should be remembered that the principal witnesses for the plaintiff were Mr. Downey and Mr. Hendricks. These gentlemen were members of the boards of directors of both roads. They and others testify to the impressions made upon them by the statement at meetings of the board and elsewhere that the purpose sought was to obtain a more favorable lease for the Christopher Street Company. On the 35th of April, 1884, at the meeting of the directors of the Christopher and 10th Street road, at which Mr. Hendricks and Mr. Downey were present, the resolut'ons in regard to the proposed lease of 1884 were offered, and Mr. Hendricks and Mr. Downey, together with a Mr. Lyons, who did not thereafter actively participate in the work, were appointed as the committee to confer with the directors of the 23rd Street Company, which latter company met in May of the same year, at which meeting Mr. Hendricks and Mr. Downey were again present, and which resulted in the appointment of a like committee of three directors. These two committees subsequently met, and agreed upon the form and terms of a proposed lease, and on the 20th of May, 1884, reported to the board of directors of the Christopher and 10th Street Company, through Mr. Hendricks as chairman, at which time the terms of the lease were read and were in all respects identical with the terms of the lease in dispute, *238except that it demised an additional route to run northerly from the corner of 14th street and 11th avenue to the foot of West 23rd street. Mr. Downey and Mr. Hendricks were also present at the meeting of the directors of the 23rd Street Company held in June, 1884, when Mr. Sharp presented the proposed lease, and it was again read, but laid over without action being taken thereon. In the following July, when Mr. Hendricks and Mr. Downey were again present, the proposed lease was referred to a special committee, consisting of the gentlemen named and Mr. Ballin and Mr. Sandford, together with the president of the road, Mr. Sharp. This committee met, and Mr. Downey at such meeting moved that the privileges in the proposed lease to run northerly from 14th street to 23rd street should be stricken out, and the balance of the lease confirmed. This action was reported to the meeting of the 23rd Street Company on the 18th of July, when Mr. Downey and Mr. Hendricks were again present. And then a circumstance which is of special importance occurred, showing to my mind that the question of the extent of the right of the 23rd Street Company over the 14th street route was called to the attention, not only of Mr. Downey and Mr. Hendricks, but of all the gentlemen present, some of whom were also directors in the Christopher and 10th Street Company. This circumstance was the reading of the minority report presented by Mr. Ballin, in which it was proposed to grant the exclusive right to the Christopher and 10th Street Company over the entire 14th street route, upon their paying thereafter $7,000 a year. This minority report of Mr. Ballin was in writing, and signed by himself, and contained a statement of what, in his opinion, should be the terms of the lease to be made between the companies. At that meeting this report, on motion of Mr. Downey, was received, and ordered to be entered in full on the minute book; and Mr. Hon dricks thereafter moved that all privileges in the proposed lease permitting the Christopher and 10th Street Company to run north to 23rd street should be stricken out. These same gentlemen were present subsequently at a meeting of the Bleecker Street Company, when the proposed lease was again read; and, at the subsequent meeting of the Christopher Street Company, when Mr. Downey was present, the lease was read and accepted.

In view of the number of persons who were members of both boards, and who, on these several occasions, heard this lease read, while, at this distance of time, it would be very reasonable and natural that they should not remember this clause especially, it is hardly probable that a clause of so much-importance could be read on so many occasions in the hearing of the same persons, and have been the subject of an animated discussion produced by the introduction of the minority report of Mr. Ballin, without being aware that the clause as included in the lease would reserve to the 23rd Street Company what it is now claimed by the language it does. I have particularized the presence of Mr. Hendricks and Mr. Downey because I think it will be agreed by the plaintiffs themselves that their main reliance was upon the evidence furnished as to their recollection of what transpired at all these meetings. Both these gentlemen are respectable and honest witnesses, who were disposed to state just what they remembered as having transpired at these meetings; but neither Mr. Downey nor Mr. Hendricks claim that his memory is as good as the records of the meetings, which are not disputed, and which recite exactly what occurred while they were present. It is, under such circumstances, no reflection on either of the gentlemen named, when it is concluded that their memory as to all the facts is not as accurate nor as enduring as the written records of the two companies. I think, moreover, that, in view of what these records disclose, and the testimony of witnesses produced upon the trial as to what was stated at different times by Mr. Sharp and Mr. May at meetings of the board, these are entirely consistent with what actually took place with reference to the affairs of these two companies. The directors and stockholders to a large extent were mutually interested in both companies, and it was their purpose to promote, so far as could be, the interests of one where such would not injure the interests of the other. At the time the lease of 1884 was made, both had well-defined routes in actual operation, and I have no doubt had the companies remained with the same stockholders, and with the same friendly relations that formerly existed between them, that the right reserved to the 23rd Street Company would, in all proba*239bility, never have been used. In other words, I think it reasonably certain that what was sought to be effected by the lease of 1884 was not in the expectation that the 23rd Street Railroad Company would make any present use of its right to run on 14th street, but was conceded with the double object, not only of saving to the 23rd Street Company the right to go down town in the event of the license granted to it by the 9th Avenue road being revoked, but, in addition, that it would preserve intact the franchises which it had received under its lease from the Bleecker Street Company. For the former purpose it was necessary to reserve the right of running west of 9th avenue on 14th street; and for the latter purpose of making its connection, in case it ever should have been found advantageous or desirable, with the franchise granted of going down town through University place and Lafayette place, and through private property to Bleecker street, and thus connecting with the line running to Fulton ferry, the passage over 14th street east of 9th avenue was necessary and essential. This the 23rd Street Company undoubtedly intended to secure, though I am satisfied that at the time there was no present intention of running a rival line upon 14th street. So far, therefore, as the 23rd Street Company is concerned, the testimony reasonably bears but one construction,—that on their part they intended to secure just what they got, namely, the right to run over the entire 14th street route. This circumstance, that from statements made which might have produced an impression, and undoubtedly did, that there was no present intention of using the portion of the route on 14th street east of 9th avenue, may have been a feature and cause for the action of some of the directors of the Christopher Street Company in giving up and conceding this right to the 23rd Street Company. Whatever, however, may have been the reasons inducing the action on the part of the Christopher Street directors, I am not satisfied upon the proof furnished that even as to them it was a mistake, or that any fraud was practiced to secure the corporate action of the Christopher Street Company. I think the testimony tends to show that the relations between the 23rd Street Company and the Christopher and 10th Street Company oppose the view that the Christopher and 10th Street Company at any time desired to restrict the reservation proposed by the 23rd Street Company. It is unnecessary, in view of the conclusion reached, to consider the effect of the leasing of its property and franchises by the Christopher and 10th Street Company to the Cross Town Company as to the right of either plaintiff to obtain the relief sought for in this action. For, irrespective of whether the reservation expressed in the lease of 1884 was a mistake or not, and irrespective of the question whether that reservation expressed the intention of the parties at that time or not, it is doubtful if the Christopher and 10th Street Company can now at this late day ask for a reformation of the contract in equity, after imposing upon its lessee, the Cross Town Company, the obligation and burden of respecting and maintaining that very reservation. There is nothing to the contrary shown but that, when the Cross Town Company obtained this lease in 1890 from the Christopher and 10th Street Company, it was in full possession of all the facts. As stated, however, it is unnecessary to determine this question, which, in the event of a contrary conclusion upon the main question, might have been a serious one. I prefer, as I have done, to dispose of the case upon the merits of the sole issuei raised by the pleadings, and, after an examination of the pleadings and the proofs such as was justified by the importance of the result to the parties litigant, I have reached the conclusion that the burden placed upon the plaintiff of showing that the reservation in controversy was the result of accident and mutual mistake, or mistakes on one side and fraud on the other, has not been supported by such evidence as would be required to justify a court of equity in changing the terms of the written agreement or lease of 1884. No sufficient evidence, therefore, being presented to the contrary, I am of the opinion that the corporate action of the several parties to the lease of May 20, 1884, shows that the lease contains the agreement entered into between them, and that the allegation that another “or different agreement, such as set forth in the complaint, was made, has not been established. For these reasons, there should be judgment for the defendants, with costs.

*240Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Frederic R. Coudert, Thomas G. Shearman, and Everett P. Wheeler, for appellants.

Edmund Randolph Robinson, for respondents.

PARKER, J.

The issues involved in this suit were so fully discussed in the opinion of the trial court as to render it unnecessary for this court to do more than briefly call, attention to the several propositions involved in the decision now ito be made. The plaintiffs, as lessee and sublessee from the defendant the Twenty-Third Street Railway Company of certain of its street-railroad property situated on Fourteenth street, in the city of New York, seek to restrain the defendants from running any cars on the tracks thus leased to plaintiffs. If the writing between the lessor and lessee to which the agreement of the parties was finally reduced and formally executed about May 20, 1884, provided that the lessee ■should have the exclusive right to use the property leased, the plaintiffs’ demand for injunctive relief could not be questioned. But while the agreement gave to the Christopher & Tenth Street Railroad Company the right to run and operate its cars upon and ■over a portion of the railroad property and routes owned by the Twenty-Third Street Railway Company, including its Fourteenth street property, it expressly reserved to the lessor the same right as to the last-named route. The plaintiffs insisting that, notwithstanding the lease purported to reserve to the lessor the right to run its cars over so much of the property described in the agreement to lease as was situated on Fourteenth street, such was not the intention of the parties, and its insertion in the written contract was owing to a mutual" mistake of the parties, and the relief prayed for in their complaint was in part that the court so reform the writing that it should conform to the agreement upon which the minds of the authorized representatives of the parties originally met. The defendants, by their answer, denied this contention of the plaintiffs, and nearly all the evidence presented on the trial bore upon that issue. When the controversy was submitted to the trial court for decision, the plaintiffs contended, as they do now, that the language of the reservation, in the light of the evidence given upon the trial, was ambiguous, and therefore, in its construction, regard should be had to the situation of the. parties and the surrounding circumstances. That, if so construed, it would necessarily and properly follow that the reservation of rights to the lessor would be limited to such part of its Fourteenth street property as lay between Ninth and Eleventh avenues.

At the time the lease was executed, there were two independent routes on Fourteenth street, one extending from Eleventh to Ninth avenue and the other from Ninth to Fourth avenue. Evidence was Introduced .tending to show that, at and prior to the making of the lease, it was regarded by some of those interested in the cor*241porations which were parties to it that the route between Ninth and Eleventh avenues might become important to the lessor at some future period in the operation of such of its surface railroads as it did not lease to the Christopher Street Railroad Company. Other evidence was presented for the purpose.of causing it to appear to the court that what the lessor intended to do was to reserve the right to run its cars over that portion of Fourteenth street extending from Ninth to Eleventh avenue. Reading the reservation in the light of such evidence, the appellants urge that it is not •only within the province of the court, but its duty as well, to so read it as to limit its operation to that portion of Fourteenth street. Turning to the agreement, we find that it demises and leases the right to “operate a railroad upon and through the following routes in the city of New York, that is to say: Commencing at the intersection of Fourteenth street and Fourth avenue, thence through and along Fourteenth street, with double tracks, to Eleventh avenue, and from Fourteenth street, through and along Tenth avenue, with double tracks, to Little Twelfth street; thence through and along Little Twelfth street, with single track, to Washington street; thence through and along Washington street, with single tracks, to Christopher street, to connect with the present tracks of the party of the second part; also, from the aforesaid tracks at Little Twelfth street and Tenth avenue, through and along Tenth avenue to West street, with single tracks; thence through and along West street to Christopher Street ferry, and thence through and along Christopher street, with double tracks, to Washington street. It being understood and agreed that the party of the first part shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.” It will be observed that the description thus given of the property leased does not designate a route from Fourth to Ninth avenue, and another from Ninth to Tenth avenue, but, instead, a property situated on Fourteenth street, extending from Fourth to Elei'enth avenue. The reservation in terms refers to and includes the railroad property thus described. It provides distinctly and positively that the lessor “shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.” Clearly there is no ambiguity here; no room to question what the draughtsman intended. And, in case an instrument is plain and unambiguous, the court has not the right to read into it other words and phrases in order to make a new and different agreement for the parties, notwithstanding the facts and circumstances surrounding them, or connected with the execution of the contract, may have been of such a character as to induce a conclusion that the imported language would make the agreement more in accordance with exact justice, or more nearly what to the court may seem to have been the probable intention of the parties. While nothing is needed beyond a reading of the description of the property leased, and the reservation which is contained in the sentence next fol*242lowing it, to support a determination that the reservation is not ambiguous, and therefore not to be cut down by the court because it may perhaps be of the opinion that the provision ought to have been otherwise, still it may not be out of place to observe that if the contention of the appellants touching the authority of the court in the premises be sound, and its construction could be adopted, there would result, not only a different contract than that executed by the parties, but one differing from that which the trial court, in passing upon another question, has found the parties intended to make. After hearing and weighing all of the evidence bearing upon the principal issue presented, and which the plaintiff insisted should lead to a reformation of the lease, the court found that “the parties to said lease never at any time mutually agreed, in terms or in substance, upon a provision that the use of the route in Fourteenth street by the Twenty-Third Street Railway Company should be restricted to that portion of the route west of Ninth avenue; but, on the contrary, the said parties did mutually agree upon the said lease of May 20, 1884, sought to be reformed in this action.”

While the plaintiffs have made the point, with some appearance of seriousness, that the contract should be treated as something entirely different from that which its language expresses, their efforts on the trial were principally directed to the introduction of testimony tending to show that another and different agreement than that which is expressed in the lease was contemplated by the parties. The main purpose of its introduction was of course to show such a situation as should entitle plaintiffs to invoke the aid of a court of equity, to the end that the contract should be so reformed as to make it represent the real intent of the parties to it. The power of the court in such case is undoubted, and its exercise has in many instances promoted the ends of justice. Many cases have been considered under this head of equity, and they have resulted in the establishment of a rule that a contract shall not be reformed on loose, contradictory, or unsatisfactory evidence. Upon the plaintiff in such cases rests the burden of establishing his position by a greater preponderance of evidence than is ordinarily required in civil actions. Some of the authorities have gone so far in that direction as to hold that the burden resting upon the plaintiff is precisely like that rule of the criminal law which requires that the guilt of the accused must be fully proved; that neither the preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose unless it generates full belief of the fact, to the exclusion of all reasonable doubt. In Southard v. Curley, 134 N. Y. 148r 31N. E. 330, a divided court held that the authorities which received some examination at its hands did not require it to hold that this strong rule of criminal procedure had become a part of the practice in civil actions. But thoroughly well established is it that reformation of written instruments will be granted only when there is a plain mistake, clearly made out by satisfactory proofs. The purpose, in part, of referring to the doctrine of the cases on this subject *243is that it may be appreciated that the rule which ordinarily governs this court in reviewing the evidence upon which a trial court has predicated its findings should certainly be not less rigorously enforced than is required in actions generally,—a rule which denies the rig"ht of this court to reverse a judgment, simply because it concludes that it would have found the facts otherwise than the jury, referee, or trial court found them, allowance being properly made for the more advantageous position occupied by him who listens to the testimony of the witnesses, observes their conduct on the stand, hears their voices, and notes the accentuation accompanying their testimony. The trial judge has found that there never was any such agreement made between the parties as would have resulted had the court reformed the contract as requested by the plaintiffs. Yet the very first step which the plaintiffs were bound to take, in order to entitle them to the relief sought, was to establish that the actual agreement of all the parties to the instrument was as alleged in the complaint. The trial court, not content with finding that the plaintiffs failed to establish that the common agreement did not become a part of the written instrument, proceeded still further, and found as a fact that the lease correctly expressed the real agreement between the parties. That finding reads as follows:

> “The said lease of May 20, 1884, between the Christopher & Tenth Street Railroad Company and the Twenty-Third Street Railway Company and the Bleeeker Street & Fulton Ferry Railroad Company, set forth in the complaint as Exhibit No. 3, fully embodies and correctly expresses the real agreement made between the said parties to the lease in question.”

The findings alluded to not only justify, but require, the judgment dismissing the complaint, and they have such support in the evidence as denies to this court the right to reverse them. A discussion of the evidence, which after examination we regard as amply sufficient to support the findings of fact made, will not be profitable, especially in view of the fact that they were considered at considerable length and with much care in the opinion of the court at special term.

The first exception to the admission of evidence to which our attention is called by the appellants’ brief, it is urged, presents the question whether the court properly received in evidence a complaint in a prior action between these parties, in which these defendants were the plaintiffs, and the plaintiffs in the pending action were the defendants. It was offered by the plaintiffs for the purpose, among others, of bringing to the attention of the court the fact that such complaint alleged, among other things, that the lease of May 20, 1884, reserved to the Twenty-Third Street Company the right to operate cars on Fourteenth street from Fourth to Eleventh avenue, and that such allegation was not traversed. The merits of the proposition suggested we are prevented from considering, because, while there was an exception taken, there was no objection made to the admission of the evidence. The record shows that, when the defendants offered the complaint in evidence, the court inquired the purpose of it, to which plaintiffs’ counsel replied, and then it was admitted, the plaintiffs thereafter excepting. But *244plaintiffs had not objected in any form whatever to its admission. Their counsel was silent from the moment when the complaint was offered in evidence until after its admission. Nor did they after-wards move to strike it out George H. Curtiss, who was elected a director of the Christopher & Tenth Street Railroad Company in June, 1884, testified that he was present at a meeting in October following, when the minutes were read of the previous meeting, which contained a resolution ratifying the lease. He was permitted to testify to the discussion which took place on the motion to adopt the minutes as read. He said that one of the directors objected that the lease did not explicitly define the rights of the companies as to Fourteenth street, and that the president replied that he had a great deal of trouble to get the lease, that it was the best he could get, but it was not intended that the Twenty-Third Street Railway Company should run east of Ninth avenue. He was then asked the following question:

> “State whether or not it was your understanding, in voting for that resolution, that the lease would give to the Twenty-Third Street Railway Company the right to run cars in Fourteenth street east of Fourth avenue.”

The question was excluded on defendants’ objection, plaintiffs excepting. Had the question been a proper one, its refusal would ¡not call for a reversal of the judgment because of the finding of fact, which the answer could not have affected, that the written lease fairly stated the common agreement arrived at by the parties before any attempt was made to reduce it to writing. But it was properly excluded for the reason that it had already been made to appear from the testimony of the witness that the reservation was considered and discussed, the fact being commented on that it did not define the rights of the respective companies in Fourteenth street. The president gave his personal assurance, merely, that it was not intended that the Twenty-Third Street Railway Company should run east of Ninth avenue. He did not pretend to say that the lease so restricted it; and, the witness having full knowledge of the fact of the existence of the reservation clause in the lease, and its failure to define the rights of the lessor and lessee in Fourteenth street, whether he had the capacity to comprehend or understand it was not material to any question before the court.

The exception taken to the ruling of the court that it was without power to amend the complaint as requested presents a more interesting question. The complaint alleg'éd that the written lease did not truly express the common agreement upon which the minds of all the persons representing the parties to it met, and that its failure to do so was owing to their mutual mistake. When reformation of a written instrument is sought, it must of course be made to appear that the error was due either to the mutual mistake of the parties, or mistake by the one and fraud on the part of the other. The complaint did not mention the second ground, and it was not the plaintiffs’ theory that the representatives of the lessor had been guilty of fraud. After plaintiffs had rested their case, and during the examination of defendants’ witnesses, evidence was elicited tending to show that the officers of the lessor had intended precisely *245such, a lease as had been executed. Before being confronted with such, testimony, plaintiffs’ counsel moved the court that the complaint be amended by adding on page 11, folio 33, after the words “by accident and mistake which was mutual,” the following: “Or by mistake on the part of the Christopher and Tenth Street Railroad Company, and by fraud on the part of the Twenty-Third Street Railway Company.” The court denied the motion,, on the ground that it had no power on the trial to make the amendment proposed, and plaintiffs excepted.

Whether the court was mistaken in the position taken by it we are not agreed. One view is that by the proposed amendment it was sought to bring in a new cause of action; while the other is that, although at first blush it may have that appearance, such would not have been its effect. The purpose of the suit was to reform a written instrument. Relief could only be granted in case the plaintiffs should prove (1) a common agreement of all the car-ties, other than that expressed in the instrument; (2) the executed! .agreement; (3) that the insertion of the provision not agreed towns without the knowledge of any of the parties to it, or without the knowledge of one of the parties, the other having the knowledge, but concealing it. It was long ago determined that these allegations might be stated by the pleader in the alternative, and the-practice thus established has been steadily followed. So, if the plaintiffs had stated in their complaint in the first instance that the insertion of a different provision than that upon which the minds of the parties met was owing to the mutual mistake of the parties, or to the mistake of the. one party and the fraud of the other, the point could not have been successfully made that the complaint, while pretending to allege one cause of action, in fact joined together two inconsistent causes of action. As they may stand together when pleaded in the alternative, because forming a part of the appropriate allegations of a complaint setting up a cause of action to reform a contract, it necessarily follows that an amendment which states them in the alternative, where one is already expressed, cannot operate to change the cause of action. Again, if we apply the rule adopted by the court of appeals in Davis v. Railroad Co., 110 N. Y. 646, 17 N. E. 733, it will be at once apparent that the proposed amendment would not have resulted in alleging a new cause of action. The court said:

> “It is a fair test, to determine whether a new cause of action is alleged In the amended complaint, that a recovery' had upon the original complaint would have been a bar to any recovery under the amended complaint.”

It is obvious that a recovery had upon the complaint in this action would have been a bar to any recovery on a complaint as it would have been if amended as requested. As I view it, therefore, whether the court should have granted the motion, and upon what terms, at that stage of the trial, rested in its discretion, and, had it denied the motion on that ground, its decision would not have been called in question. Now, the discretion of the court was not exercised, because of the erroneous conclusion that it was *246without power to grant it. Is this mistake of such a character as calls for a reversal of the judgment? Clearly, it is, unless it appears beyond controversy that the result could not have been affected by it, for we cannot possibly know how the court would have decided the question had it passed upon the merits of the application. The motion, not in terms, but in effect, was one to conform the complaint to the facts proved. Its purpose was not to secure the admission of evidence which otherwise would have been excluded. Plaintiffs’ testimony was all in. Thereafter they could only rebut that offered by the defendants. For that purpose no amendment was needed. Indeed, the fact appears that none of the evidence offered was excluded on the ground that it was not within the issues presented by the pleadings.

The evidence which plaintiffs’ counsel regarded as indicating fraud on the part of the officers of the lessor was introduced by the defendants. Plaintiffs’ counsel quickly attempted to so change this complaint as should enable their clients to reap the advantage, if any, which should accrue from such testimony. It seems to be clear that the motion made was in effect, and should be treated as, one to amend the complaint to conform to what the plaintiffs may have regarded as the facts proved. The denial of the motion, although upon untenable ground, should not bring about a reversal, if it be certain that the same judgment would have followed. And how would it have been possible for the proposed amendment to have occasioned the working out of a different result? Before reaching the question whether the reservation clause was inserted in the lease through mutual mistake, or mistake by one party and fraud by the other, the court had to determine whether the common agreement of all the parties was as alleged in the complaint. This question lay at the very foundation of the plaintiffs’ alleged cause of action. With that fact established, it would be entitled to have the court find how it came that the lease stated differently. But, without it, there could be no favorable finding on that subject. Now, the trial court found: (1) That there never was such an agreement between the parties as the complaint alleged; and, (2) that the lease truly expressed the common agreement of all the parties. Necessarily, then, the court could not have found that the reservation clause was inserted through the mistake of one party and the fraud of the other; and the right to have the court refuse to make such a finding measures all the advantage that could have accrued to. the plaintiffs had the motion been granted. It follows that no harm resulted from the mistake, and therefore it does not justify a reversal of the judgment. The judgment should be affirmed, with costs. All concur in result.