Opinion
January 13, 1966
Appeal from the Court of Claims.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously affirmed, without costs of this appeal to either party. Memorandum: We recognize that a contract may be rescinded for a unilateral mistake (37 N.Y. Jur., Mistake, Accident, or Surprise, § 7; Rosenblum v. Manufacturers Trust Co., 270 N.Y. 79; Moses v. Carver, 254 App. Div. 402). The trial court concluded "that there was no mistake sufficient for a rescission of the Agreement." If this was intended to be a conclusion that the factual issue as to mistake was not established by a preponderance of the evidence (cf. 37 N.Y. Jur., Mistake, Accident, or Surprise, § 22) we agree therewith. The contention of claimant and her witnesses that the representative of the State promised that claimant subsequently would be paid 90% of the value of the claimed landlocked acreage in the rear and in addition the State would obtain a right of way to those lands is unrealistic and unbelievable. Such twofold relief in substance would have given claimant double compensation.