Steinberg v. Powers

Judgment modified by reducing the amount of the recovery to $100. As so modified the judgment, and the order denying motion to reopen the ease, are unanimously affirmed, without costs. It appears from the pleadings and from the testimony that plaintiffs claim they were entitled to a conveyance of the premises with a gasoline station erected thereon. Defendant Powers, on the other hand, asserts that it was the intention of the parties to convey the premises in question with plans, specifications and permit for use as a gasoline station. The proof clearly demonstrates that the insertion of the words “ as deposit on a Gasoline Station ” was due to mutual mistake; that it was not the intention of either of the parties that a gasoline station *808should be conveyed. Even if these words were intended to mean what plaintiffs now assert, there was no meeting of the minds in connection with the details of the building to be erected as a gasoline station. It clearly appears that plaintiffs were unwilling to take the conveyance of the premises without the gasoline station. Defendant Powers having asserted his willingness to repay the plaintiffs the amount of the deposit, the recovery is limited to that amount. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Present — Lazansky, P. J., Rich, Young, Kapper and Hagarty, JJ. Settle order on notice.