| N.Y. App. Div. | May 5, 1909
The parties do .not disagree materially ¡as to the law applicable to this case, and that is, that in order to entitle the plaintiff to have the release rescinded in equity he -must show that it was executed as the result of a mutual mistake as to an existing fact. The defendant insists that the mistake was not one of fact, but of belief or opinion. This question must he judged solely by the -allegations of the complaint. These to my mind are ample to show that the release was signed and delivered as the result of a mutual mistake as to an existing fact. It is asserted in the complaint that-at the'time the release was executed ¡and delivered conditions existed in plaintiff’s arm which had -not then been discovered which would eventually necessitate its amputation ; that neither the plaintiff nor the defendant then knew that those conditions existed, as was the fatit, and that, the settlement was made and the release signed in good faith under -the common but mistaken .belief that plaintiff would ¡not lose his arm and upon a mutual mistake as to the conditions actually ■then -existing in the arm that would eventually result in its loss.
These are not in any sense allegations of opinions or beliefs, but of facts, and are -sufficient, in our opinion, if proven, in connection with the.other facts alleged, to establish a cause of action to rescind the release as founded upon a mutual mistake of fact.
The interlocutory judgment should be affirmed, with costs, with usual leave to- defendant to withdraw -demurrer -and - answer .on payment of -costs in this court and at the Special Term.
All concurred.
Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of "costs in this court and at Special Term.