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the attorney for said P. M., and that said P. M. inadvertently, and by mistake, gave said attorney the said conveyance from J. A. D., to draw therefrom the description of said premises, without explaining to said attorney, as he intended to have done, that the course of said creek had changed, and without directing said attorney to alter said description, by making the northern boundary of the premises the old channel or course of the stream.

Tenth. That, as plaintiffs are further informed and believe, not only did said P. M. suppose that he was conveying only such premises as were embraced in said deed of J. A. D., and as were bounded on the north by the old or former bed of the Wynantskill, but the defendant also supposed he was only receiving such premises and no other, whereas the said northern boundary, as described in said deed to defendant, is, by the mere mistake of said P. M., and his attorney, the said creek, as it now "winds and turns," and did at the time of said conveyance to defendant.

Eleventh. That said P. M., in his life-time, and these plaintiffs, or one of them, since the death of said P. M., have called the attention of defendant to the fact of such mistake, and requested defendant to rectify it, and to execute to them a quit-claim deed of the land and premises between the old and new bed of the stream, at said plaintiffs' expense, but the defendant has always refused, and still refuses to do so, and has entered upon, and is in possession of the whole of said premises, claiming that he owns the same under said deed, up to the present bed of said creek, as the northerly boundary thereof.

Wherefore, the plaintiffs demand judgment against the defendant that said deed from P. M. to the defendant may be re-formed, and be made to conform to the agreement and intentions of the parties thereto, by correcting the description of the premises therein mentioned, making the north

erly boundary line of said premises the old bed or channel of said Wynantskill, instead of the said creek as it now "winds and turns ;" and that said defendant deliver up, and said plaintiffs be let into possession of the said disputed premises, and the plaintiffs title thereto confirmed, or for such other or further relief in the premises as shall be just and equitable, together with the costs of this action. N. FORSYTH,

RENSSELAER COUNTY, 88:

Plff's Att'y.

L. M., one of the above-named plaintiffs, being duly sworn, says: That he is acquainted with the facts stated in the foregoing complaint,' and that said complaint is true, of his own knowledge, except the matters therein set forth on information and belief, and as to those matters he believes it to be true.

Subscribed and sworn before me, this

1st day of January, 1858,

JOHN L. FLAGG

L. M.

Com'r of Deeds, Troy, N. Y.

(No. 2.)

To reform a written contract for the lease of real estate, in case of mistake of fact, and praying the specific performance of the contract against the lessor, as so reformed, stated by paragraphs.2

1 Where there are several parties united in interest, the verification to the complaint must be made by one of them acquainted with the facts. (Code, § 157.)

The question whether a court of equity would reform or vary a contract by parol evidence, and then enforce it specifically, was settled

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action:

First. That defendant is the owner of a certain lot of land situate in the village of West Troy, Albany county, lying, &c. [describing it generally.]

Second. That the plaintiff is extensively engaged in the business of buying and selling lumber, and is in the actual occupation of premises in said village, for the purposes of his said business, adjoining those above described of the said defendant; holding the same under a lease from one A. B., for the term of years, which term expires on

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Third. That being unable to effect a further lease of said premises, and being desirous to continue his said business, the plaintiff made an agreement with said defendant whereby said defendant agreed that on the

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next, on the payment to him by plaintiff of the bonus of $, he would execute and deliver to said plaintiff lease of the above described premises of defendant, for the full term of ten years, for the yearly rent of $ -, payable quarterly.

Fourth. That a contract in writing, intended by both parties to express said agreement, was thereupon executed and delivered by said defendant to said plaintiff, a copy whereof is annexed to this complaint.

Fifth. That said plaintiff soon after paid said defendant the said bonus of $- -, which was endorsed by defendant

in this State by Chancellor Kent, in Gillespie v. Moon (2 John Ch. R., 585), rejecting the distinctions taken in the earlier English cases, as unfounded in justice, he decreed relief to a plaintiff in this form, and this decision has since been generally acquiesced in. See, also, Kisselbrach v. Livingston (4 John. Ch. R., 144; Story Eq. Juris., § 161, and full collection of English cases cited in note.)

upon said contract, and that plaintiff thereupon made arrangements to remove his lumber and stock on hand upon defendant's premises, so contracted to be leased, and has actually removed a considerable part thereof.

Sixth. That by the mistake of the clerk, in engrossing the said written contract before its signature, the words "ten years" were written "two years," so that by the letter of said contract, the said defendant, contrary to the agreement and understanding of both parties at the time of the execution thereof, agreed to lease said premises to said plaintiff for the term of two years only, in stead of ten years, and said mistake was not discovered by, and was unknown to, plaintiff at the time he executed said contract and paid said bonus, and for a considerable period

since.

day of

Seventh. That on the [the day mentioned for the execution of said lease], the plaintiff called upon the said defendant in person, and requested him to execute and deliver to him a lease of said premises for the full term of ten years, in all other respects according to said written contract; but said defendant refused to execute and deliver to said plaintiff a lease for such full term, or for any other term, except two years, the term mentioned by mistake in such written contract, which he, the said plaintiff, declined to receive.

Wherefore the plaintiff demands judgment against the defendant, that the said written contract or agreement may be re-formed and corrected according to the original true intent and understanding of the parties. thereto, by inserting therein the words "for the full term of ten years," instead of the words "for the full term of two years;" and that said contract, so re-formed, may be specifically enforced against said defendant, and he be adjudged to perform the same by executing and delivering, in due form

of law, to plaintiff a lease of his said above-described premises, according to the terms of said contract, so corrected, for the full term of ten years, from the

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and deliver to said plaintiff the said premises, and every part thereof, and leave him in undisturbed possession of the same; or for such further, &c. [as in No. 1.]

(2.) IN CASES OF ACCIDENT.

(No. 3.)

By administrators against next of kin, to compel reimbursement of moneys accidentally distributed, which had been collected by the administrator, on a judgment which was subsequently reversed.1 Complaint stated by paragraphs.2

Title of the Cause.

The plaintiffs, complaining of the defendant, allege the following facts constituting their cause of action.

First. That A. D., late of the town of Kinderhook, county of Columbia, died on or about the, &c., intestate, leaving no widow, and leaving the defendants, his children, who constitute all his next of kin; and that the plaintiffs were, on the, &c., duly appointed by the surrogate of Columbia county, administrators, &c., of said A. D., deceased.

Second. That on the, &c., the said plaintiffs, as administrators, &c., of said A. D., deceased, recovered a judgment

1 Story Eq. Juris., § 91.

2 This and the two preceding forms are stated in a similar manner, with No. 6, ante, by separate numbered paragraphs or articles. The pleader can adopt this mode in all cases, if he prefer. In the precedents which follow, I shall adopt the more usual mode of statement.

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