(dissenting).
Under the answer the defendant Burdick, if permitted by the court, might have proved :
*113First. That by the original agreement between her and Martin, she was to purchase whatever estate Martin had, but was not to assume, or to agree to pay the mortgage. Second. That Martin was to procure the deed to be drawn and executed according to the terms of the original agreement; and that she trusted him to do this. Third. That he did procure it to be drawn, but not according to the original agreement. Fourth. That she did not see the deed when delivered; and that her agent, havmg confidence in Martin, did. not examine it. Fifth. That until about the commencement of this action she believed the deed was drawn according to .the original agreement. Sixth. That for the purpose of defrauding her, and in violation of the true terms of the agreement, and without her consent, Martin inserted in the deed a clause by which she assumed the payment of the mortgage.
On the question of the reformation of a deed it is not necessary that there should be mutual mistake. Mistake on one 'side and fraud on the other is enough. (Bryce v. Lorillard Fire, 55 N. Y., 240 at 243 ; Jackson v. Andrews, 59 id., 244 at 247.)
Nor does the neglect of a party to read a written instrument deprive him of a remedy against the actual fraud of the other party in fraudulently inserting a clause which formed no part of the true agreement. (Botsford v. McLean, 45 Barb., 478 ; Andrews v. Gillespie, 47 N. Y., 487.) Where there is an oral agreement, and one party is entrusted by the other with the duty of committing it to writing, if he fraudulently inserts a clause which formed no part of the agreement, he cannot prevent relief against his fraud by saying that the other party ought not to have trusted him.
Such cases as those of Long v. Warren (68 N. Y., 426), and Slaughter's Adm. v. Gerson (13 Wall., 383), do not apply. They are cases of alleged fraudulent representation as to the subject matter of the contract, as to which the injured party was not to trust the other. In Moran v. McLarty (18 Sup. Ct. N. Y., 66), there was not in fact a mutual mistake. Jackson v. Croy (12 Johns., 427), only holds that mere neglect to read a paper is not sufficient proof of the fraud.. But it is plain that, in all cases of reformation of instruments, the party asking relief must have neglected to read the paper, or have x-ead negligently.
*114But it is urged that no issue was tendered to Martin. And that seems to have been the ground on which the answer was “ruled out.” (Albany City Savings Bank v. Martin, 56 How. Pr., 500.) The defendant, however, sets up this fraud only as a defence. She does not otherwise need any formal reformation of the deed. If a fraud was practiced upon her, she ought to be allowed to show this. If the plaintiffs desire that their rights against Martin should not be prejudiced, by a decision in her favor, they have only to notify him of the alleged defence, and permit him to contest it. Then he would be bound, as is suggested in Andrews v. Gillespie (ut supra).
For these reasons I think there should be a new trial.
Judgment affirmed, with costs.