(dissenting):
The true interpretation and meaning of the contract in question, as written, was determined by this court (Thompson v. Erie R. R. Co., 96 App. Div. 539; opinion by Justice Hiscook, in which all but one of the justices concurred). It was held in that case, which was an action at law, that under the terms of such contract the plaintiff was not entitled to recover. This action is brought in equity, seeking a reformation of such contract so that its provisions shall inure to the benefit of the Union Iron Works, plaintiff’s assignor.
I think there is no evidence which',justifies the conclusion that the parties to the agreement did not know and fully understand its provisions; that there is no evidence upon which fraud can be predicated in the negotiation or execution of such contract. Neither is there any evidence .from which it can be said that there was mutual mistake in the execution of such contract by the parties. In other words, in my opinion the record is entirely barren of facts which would justify.a court of equity in reforming or changing the contract as it was made and executed by the respective parties.
I, therefore, conclude that the judgment should be reversed and a new trial granted, with costs to the appellant to abide event.
Judgment and order affirmed, with costs.