The plaintiff is the vendee and the defendant the vendor under a written contract for the sale of farm lands in Suffolk county. The contract fixes a price of $4,500 and describes the lands as consisting of two parcels, *585one containing “ twelve acres, be the same more or less,” and the other “ containing about sixteen acres.”
The plaintiff alleges that he bought and the defendant sold under a mutual belief that the two parcels contained together twenty-eight acres. He alleges that, as a matter of fact, the parcels together contain but a small fraction over twenty-four acres and he asks that the contract be reformed so as to reduce the purchase price to the sum of $4,025, by making an abatement proportionate to the deficiency in quantity and that the defendant be compelled to convey for the reduced price. The complaint is open to the criticism that a very considerable part of its pleaded matter is simply evidentiary. The defendant demurs on the ground that the complaint fails to state facts sufficient to constitute a cause of action. Briefly stated, her contention-is that, inasmuch as there was no mistake between the parties as to the price, the contract cannot be reformed by substituting a new price; and that the plaintiff’s remedy, if any he has, is at law to recover back the deposit under the contract under a rescission thereof. She urges, further, that the use of the words “ more or less ” and “ about,” in the contract, with reference to the quantity of the lands, placed upon the purchaser the risk of any actual deficiency in the quantity
If the contract had been executed by conveyance, it is well settled that the vendee could maintain an action to procure an abatement in the price to correspond with the actual quantity of the land sold, provided both parties proceeded upon the assumption that the land contained the number of acres specified in the deed; and the defect is substantial, notwithstanding the use of the words “ more or less.” Paine v. Upton, 87 N. Y. 327; Gallup v. Bernd, 132 id. 370. The rule is not different as to an executory contract, for although, on discovering the deficiency, the vendee may rescind, he may also stand upon his contract and seek its performance against the vendor with a proportionate abatement in price. 2 Beach, Mod. Eq., § 627; Bostwick v. Beach, 103 N. Y. 414; 1 Sugden, Vend. 526.
The defendant cites to the contrary, Curtis v. Albee, 167 N. Y. 360, and Levy v. Hill, 50 App. Div. 294. Curtis v. *586Albee does not relate to a contract for the sale of lands and states a general proposition without reference to the peculiar rules relating to such transactions. Levy v. Hill does relate to a contract for the sale of real property, but the facts under consideration were not similar, and the decision must be confined to its own facts. The granting of the relief sought by the plaintiff is a matter exclusively for the discretion of the court on a trial of the issues. A complaint which states facts sufficient to set such discretion in motion sets forth facts sufficient 'to constitute a cause of action in equity.
The demurrer is overruled, with leave to the defendant to answer on payment of costs.
Demurrer overruled, with leave to defendant to answer on payment of costs.