(dissenting) :
I dissent from the conclusions of the majority of the court.
Mary Baumgras was the beneficiary in a certificate of membership issued to Charles R. Baumgras, her husband, on the 13th of July, 1886. The certificate provided for the payment by the defendant of- $2,000 upon the husband’s death. In September, 1886, Charles R. Baumgras departed from his home and family, and nothing was heard of him, and in September, 1895, nine years after his disappearance, an action was commenced in the Supreme Court by his wife to collect the amount of the certificate upon the ground that Baumgras was dead.
The defendant defended the action and put in issue the fact of his death, and finally the action was compromised by the execution between the parties of an agreement in writing made the 20th day of March, 1896, which recites:
“ Whereas, said Charles R. Banrngrass has disappeared, and the party of the second part claims that he is dead, and
“Whereas, an action was brought by the said party of the second part (Mary) against the party of the first part (the defendant) in the Supreme Court of Onondaga county on or about the 25th day of September, 1895, to recover upon said certificate, and
“ Whereas, a settlement and adjustment of the said action has been agreed upon between the parties hereto, it is hereby agreed that the said action is to be discontinued and fully settled, without costs to either party against the other.
“ It is further agreed that said party of the first part shall pay to the party of the second part the sum of $666.00 in cash, promptly.”
It was further agreed that the balance due upon the certificate (81,334) should be left with a trustee, with certain provisions as to what should be done with the money, and the agreement continues:
“It is further agreed that in case the party of the first part shall, discover at any time between now and the said first day of July, 1897, and shall produce proper and reasonable proof that Charles R. *416Baumgrass is alive, and shall fix his identity with certainty, and shall locate just where he is, so that the party of the second part may verify the fact that he is alive, then in that case and event said fund * * * shall be returned by the said Frank B. Garrett (trustee) to the party of the first part, * * * it being agreed that said $666.00 is not to be returned in any event.”
A short time after this agreement was entered into, and before any money had been paid over by the defendant under the contract, it was ascertained that Charles R. Baumgras was living, and the defendant refused to pay the wife the $666, which she was to receive under the contract in any event. Whereupon this action was brought to recover this amount by her assignee (the respondent here), and a recovery was had in the trial court, and the question is here presented whether the contract thus made could be enforced, or whether the fact of the reappearance of Baumgras destroyed the right of his wife to recover the $666 upon the ground that the contract was entered into under a mutual mistake of facts between the parties to it.
The question of the existence of the husband was the disputed question in the first action. He had been gone so long that the law presumed him dead, the family and friends not having heard from him. • Had the action been pressed to a conclusion the wife would have recovered the whole amount, at least such were the probabilities. The defendant realizing that, consented to a compromise and settlement of the action, and had the benefit of it. There was ample consideration for the contract. It was not a mistake of fact. It was the case of a settlement of a disputed claim. It was to get rid of a law suit. One party claimed that the man was dead; the other claimed that he was alive. The money in controversy in that action depended upon the solution of that question, and the parties, without either of them surrendering their convictions upon the subject, settled tile case, the plaintiff to have one-third and the defendant to retain two-thirds of the amount in dispute — a fair, equitable adjustment, under the circumstances, without fraud or mistake. The parties contracted with reference to the contingency of Baumgras being . alive; here was no mistake of fact. The cases that relieve under those circumstances, and that have been cited, are cases where there was a mutual mistake of fact, that is, both parties supposed a fact *417to exist when it did not, but this is a case, as I have said, in which a law suit was pending, and the contingency of Baumgras being alive considered, discounted and settled; and upon familiar principles such au arrangement should be sustained.
Stress is laid by the appellant upon a finding of the trial court that both parties, at the time of entering into the contract in question, believed the said Charles R. Baumgras to be dead, but the trial court further found in that connection “ that, notwithstanding such belief, said parties, and especially the defendant, entered into and made the contract in question, which recognized, contemplated and provided for the possibility of said Baumgrass being alive.”
I do not think that the belief of these jwties one way or the other was material. As I have said, they contracted, not with reference to their belief, but with reference to the contingencies of the situation.
These views lead to the conclusion that the judgment appealed from should be affirmed, with costs.
Jndgment reversed and a new trial ordered, with costs to the appellant to abide the event.