Opinion
December 11, 1961
In an action by a vendee for specific performance of a contract for the sale of real property, the defendant vendor appeals from an order of the Supreme Court, Queens County, dated April 12, 1961, which granted the plaintiff's motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice, dismissed the defendant's counterclaim and directed him to specifically perform the contract in accordance with its terms and conditions. Order reversed, without costs, and motion denied. As a defense and counterclaim, the defendant alleged facts to support a claim for reformation and also for rescission of the contract. We shall assume that he did not make a sufficient showing as to the defense of and counterclaim for reformation (see, e.g., Ross v. Food Specialties, 6 N.Y.2d 336, 341; Metzger v. AEtna Ins. Co., 227 N.Y. 411, 417; but, cf. Selmar Garage Corp. v. Rink Realty Corp., 276 App. Div. 786; Susquehanna S.S. Co. v. Andersen Co., 239 N.Y. 285, 297). Nevertheless, in an appropriate case, a unilateral mistake may justify rescission in equity ( Metzger v. AEtna Ins. Co., supra, pp. 411, 417), or may justify a court of equity in refusing specific performance (5 Williston, Contracts [rev. ed.], §§ 1577-1580; cf. Johns-Manville Sales Corp. v. Stone, 5 A.D.2d 110, 114), even when the mistake was caused by the misrepresentation of the party's own attorney (see, e.g., Pimpinello v. Swift Co., 253 N.Y. 159; also, see, e.g., Matter of Oswald, 281 App. Div. 902). In our opinion, a trial should be had and the determination herein should be made by a court of equity upon the basis of all the proof adduced. Nolan, P.J., Ughetta, Pette and Brennan, JJ., concur; Beldock, J., concurs in the result.