Opinion
June 14, 1935.
Appeal from Supreme Court of New York County.
Louis Connick of counsel [ Thomas R. Strahan and Hamilton Rogers with him on the brief; Simpson, Thacher Bartlett, attorneys], for the appellant.
John M. Harlan of counsel [ Melbourne Bergerman and George E. Johnson with him on the brief; Root, Clark, Buckner Ballantine, attorneys], for the respondent.
On principle, there would seem to be substantial doubt whether the plaintiff should not be permitted to maintain this action on the theory of mistake. ( Northern Assurance Co. v. Grand View Building Assn., 203 U.S. 106.) The purpose of this action is to secure the reformation of the written policy so that it shall correctly express the alleged intentions of the parties by including the loss. The previous action merely held that the loss was not covered by the terms of the policy as they had been reduced to writing. It may, therefore, not unreasonably be contended that the issues are not identical and that the previous action is not res adjudicata here. We are, however, constrained to affirm the judgment and order, with costs, on the authority of Steinbach v. Relief Fire Ins. Co. ( 77 N.Y. 498, cited with approval and followed in Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 id. 304).
MERRELL, TOWNLEY and UNTERMYER, JJ., concur; MARTIN, P.J., and GLENNON, J., dissent.
Judgment and order affirmed, with costs.