Benz v. State , 25 A.D.2d 482 ( 1966 )

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 Memorandum: We recognize that a contract may be rescinded for a unilateral mistake (37 N. Y. Jur., Mistake, Accident, or Surprise, § 7; Rosenblum v. Manufacturers Trust Co., 270 N. Y. 79; Moses v. Carver, 254 App.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. (Appeal from judgment of Court of Claims dismissing the claim.)

Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.