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WEST SIDE FED SAV v. HIRSCHFELD

101 A.D.2d 380 (1984)

West Side Federal Savings & Loan Association of New York City, Appellant-Respondent, v. Abraham Hirschfeld et al., Respondents, and State Street Garage Corp., Respondent-Appellant, et al., Defendant

Appellate Division of the Supreme Court of the State of New York, First Department.

May 10, 1984

Attorney(s) appearing for the Case

Donald Zimmerman of counsel (Theodore J. Greene, Jeffrey A. Fillman and Gerald M. Levine with him on the brief; Theodore J. Greene, P. C., and Finley, Kumble, Wagner, Heine, Underberg & Casey, attorneys), for appellant-respondent.

Robert Markewich of counsel (Arthur Markewich, Maurice Shorenstein and Harry Grossman with him on the brief; Markewich, Friedman & Markewich, P. C., attorneys), for Abraham Hirschfeld, respondent, and for respondent-appellant.

SILVERMAN, FEIN and KASSAL, JJ., concur with LYNCH, J.; ASCH, J. P., dissents in part in a separate opinion.

LYNCH, J.

These are cross appeals from a judgment after a nonjury trial in this action to rescind a mortgage on the ground of fraud and conspiracy. The plaintiff appeals so much of the judgment that implicitly denied its motion to conform its pleadings to its proof to assert a claim of mutual mistake and that dismissed the action against the defendant Hirschfeld. The defendant State Street Garage Corp. (State...

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