Lazarus v. Bowery Savings Bank ( 1965 )

Order reversed, with costs in all courts, and case remitted to the trial court for entry of judgment in favor of plaintiff. On this record, the uncontradicted evidence established that the written agreement of the parties resulted from a mutual mistake and that the true intent of the parties was to relieve plaintiff from personal liability on both the bond and the mortgage. Accordingly, the trial court erred as a matter of law in refusing to find facts which had been conclusively established (Cohen and Karger, Powers of the New York Court of Appeals, pp. 456-458).

Concur: Judges Fuld, Van Voorhis, Burke and Scileppi. Chief Judge Desmond dissents in the following opinion in which Judges Dye and Bergan concur.