Citation Numbers: 12 Misc. 2d 248
Judges: Marks
Filed Date: 2/28/1958
Status: Precedential
Modified Date: 2/5/2022
This case tried before the court without a jury is based upon the contention that through mutual mistake and inadvertence upon the part of the plaintiff and the defendant, a contract of employment entered into between the plaintiff and the Eastern Region of the Radio Writers Guild contained a discharge clause which was not actually agreed upon between the parties to said employment contract. Plaintiff seeks to have the said contract reformed by amending the discharge clause to show that a discharge may only be for cause, and, as so reformed, plaintiff asks for damages for the alleged illegal and unlawful discharge in the sum of $9,291.57.
In view of the ultimate disposition of this court, it is not necessary to go into the proof with respect to the liability of
The proof required to reform a written instrument is well established by law. In the case of Amend v. Hurley (293 N. Y. 587) the court said (p. 595): “ Before defendant can be granted reformation, he must establish his right to such relief by clear, positive and convincing evidence. Reformation may not be granted upon a probability nor even upon a mere preponderance of evidence, but only upon a certainty of error (Christopher St. R. Co. v. 23d St. R. Co., 149 N. Y. 51; Salmon v. North British & M. Ins. Co., 215 N. Y. 214; Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285; Porter v. Commercial Cas. Ins. Co., 292 N. Y. 176).”
The plaintiff testified that she herself prepared the clause involved and that she submitted the entire contract to the three members of the Eastern Region of the Radio Writers Guild who had been selected to negotiate the contract with the plaintiff, and that they went over it paragraph by paragraph and the only changes suggested by these representatives of the Radio Writers Guild, Eastern Region, were with respect to the compensation to be paid to the plaintiff and the duties to be performed by plaintiff as executive secretary of the Radio Writers Guild, Eastern Region. There was a preliminary draft of the employment contract which was prepared and typed by the plaintiff in which penciled changes were made by the plaintiff. This preliminary draft contained the same discharge clause as eventually appeared in the signed contract of employment. A proposed contract was then prepared and typed by the plaintiff and this proposed contract of employment was the one that was submitted to each member of the committee appointed by the Radio Writers Guild to negotiate the contract with the plaintiff. This proposed contract also contained the same discharge clause as eventually appeared in the con
The contention of the plaintiff that her decision was ineffective for lack of authorization by the guild counsel is without merit. Although not specifically mentioned in the decision of the court in the prior action dismissing the complaint, that issue was part of that case and whether or not that question was specifically pointed out, the judgment in the prior action is res judicata;
Accordingly, judgment is found in favor of the defendant dismissing the complaint on the merits. Findings of fact and conclusions of law having been waived, this constitutes the decision of the court.