Opinion
March 12, 1952.
Appeal from Supreme Court of Columbia County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ. [See post, p. 1101.]
The judgment is declaratory of the rights of the parties under a written instrument they executed, dated September 29, 1944, to the effect that such instrument is null and void, and grants appropriate injunctive relief. Under the undisputed evidence any right or interest which defendant acquired under the instrument in question has been cancelled by the conduct of the parties if the literal language they employed in its third paragraph is controlling. Upon the issue raised by defendant's counterclaim for reformation the evidence was insufficient to discharge its burden of proof, and even so, in the light of all relevant matters contained in the correspondence between the parties which was offered in evidence and excluded on plaintiff's objection. In its inception the instrument constituted a contract. ( Wood v. Duff-Gordon, 222 N.Y. 88.) Judgment unanimously affirmed, with costs.