(dissenting). The purpose of this action is to reform a policy of fire insurance upon the ground that there was a mutual mistake. To be entitled to relief the plaintiff must prove there was such a mistake. There may have been a mistake on the part of the plaintiff, but the evidence did not sustain plaintiff’s contention that there was a mutual mistake. (Salomon v. North British & Mercantile Ins. Co., 215 N. Y. 214; Zap v. United States Casualty Co., 115 Misc. 634; Metzger v. Ætna Ins. Co., 227 N. Y. 411.)
The testimony of Burns established the fact that there was no mistake on his part. He testified to an entirely different version of the transaction from that testified to by Kriegel, which testimony effectively denied everything testified to by Kriegel whose testimony was unreliable and contradictory.
The defendant insured a brick building which it intended to insure, and would not have insured what the plaintiff claims was insured, the contents thereof, it having previously canceled a policy covering the stock and fixtures.
The judgment is correct and should be affirmed.
Dowling, P. J., concurs.
Judgment reversed, with costs, and judgment directed in favor of plaintiff, with costs. Settle order on notice reversing the findings inconsistent with this determination and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.