This action is brought to reform a policy of insurance, and to recover the amount' of the insurance.
The property insured was a mill. The defence is, that the property was insured upon the understanding that the same should be run and operated in the day, only, whereas, the same was operated at night, the risk thereby increased, and the fire caused during the night.
The evidence on the part of the plaintiff showed that when the application for insurance was made, the agent, Hanford, refused to insure with a' clause allowing the mill to be run at night; that afterwards the plaintiff’s agent applied to another company, which agreed to take half, and he then saw Hanford again, and asked him to take the other half. Hanford replied that the president had changed his mind, and would write as other companies did. That he then told Hanford they wanted the privilege to run over time, or at night; and that he said, “bring me the form of the other company, and they would write.” That he took the policy of the United States Company to him and received a policy. That he did not discover, till after the fire, that the permission to run at night was not in the policy.
Hanford testified that the party applying for insurance did not request that the policy should contain such permission, and that he never agreed thereto.
The case was tried before Justice Barnard, of the Second Department, who found that by the mutual mistake of both parties and their agents the permission was not inserted in the policy, and that the mistake was not discovered until after the loss. He rendered judgment directing that the policy should be reformed by inserting *76the permission, and then rendered judgment for the plaintiffs for the amount of the loss.
The defendants appealed, and the case was sent to this department.
It is well settled that to warrant the court to reform a contract by inserting provisions that were omitted, or in correcting the same in any matter in which an error was made, it must appear that such mistake was made by both parties. If one party was mistaken, and the other was not, no such judgment can be rendered. This, like any other question of fact, is to be settled by the jury, or by the court, if the action is tried without a jury; and where the evidence is conflicting and contradictory, the finding at the trial is conclusive upon the parties. Here there was such conflict, and the justice who tried the case has found that both parties were mistaken. There is no difference between the evidence on each side, to justify us in saying that the judgment is against the weight of evidence. Upon no other ground could we hold the finding to' be erroneous.
It is urged that the policy cannot be reformed after the loss has occurred. This was held in Solms v. The Rutgers Fire Ins. Co., in the Superior Court, (8 Bosw., 578,) but that case was reversed by the Court of Appeals, where it was held that the plaintiff could recover. (S. C., 3 Keyes, 416. Bidwell v. Astor Mutual Ins. Co., 16 N. Y., 263, and opinion of Gilbert, J., in this ease on former argument.)
The blank policy, which was admitted by the learned justice, was not properly in evidence. The paper produced was not the original shown to the agent, and unless that is shown to have been lost or destroyed, a copy was not admissible. But such error could have done no harm on the trial, as the evidence was sufficient without it, and in an equity case, where it appears to have not been a material error, the court will not, on that account, grant a new trial.
*77[First Department, General Term at New York, November, 1873.The finding of the court upon the question of fact being conclusive, I see no ground on which this judgment can be reversed.
judgment affirmed, with costs. (a)
Ingraham and Fancher, Justices.]
Affirmed by Court of Appeals. 55 N. Y., 657.