(dissenting). It seems highly incredible that a lawyer of many years’ experience should, in the final draft of the contract, have crossed out the provision limiting payments during the life of Mrs. Hoffmann, that he should have neglected to notice the elimination of this previously controversial provision when he received the agree*616ment, and have overlooked it again when he advised his client to sign it. Modification is predicated upon the ground that the parties had arrived at a definite oral or written understanding prior to the signing of the instrument sought to be reformed. The earlier conversations and writings of the parties were purely negotiatory. There had been no final integration of ideas on important phases of the agreement. Until the final recasting of the contract, the parties were not in agreement as to the period to be covered by the payments to the widow, the assurances to be given by her for the personal payment of her husband’s debts, and the insurance to be provided by defendant for her benefit in the event of his death. Since the parties were dealing at arm’s length, McNamara was under no duty to inquire as to the reason for the many changes made by defendant’s lawyer in the last draft of the contract. The weight of the evidence does not show that McNamara knew that any of these changes had been mistakenly rather than intentionally made. The record presents a question of fact. The Trial Justice’s appraisal of the testimony should not be disturbed. (Boyd v. Boyd, 252 N. Y. 422, 429.)
Caeswell, Johnston and Adel, JJ., concur; Close, P. J., and Lewis, J., dissent and vote to affirm in memorandum.
Interlocutory judgment entered in favor of plaintiffs modified on the law and facts as follows: (1) By adding to the first decretal paragraph, after the date April 6, 1940, the words “and that they have judgment therefor”; (2) by striking ■therefrom the second, third, fourth, fifth and sixth decretal paragraphs; and (3) by adding thereto a paragraph providing that the defendant have judgment on the counterclaim and that the instrument in suit (Exhibit A, attached to the complaint) be reformed so as to include a provision that in case of the death of Anna E. Hoffmann prior to July 1, 1945, all her rights under the said instrument shall terminate as of the date of such death. As thus modified, the judgment is affirmed, without costs.
Findings of fact and conclusions of law are modified in accordance with opinion Per Curiam.