Opinion
February 1, 1973
Order, Supreme Court, New York County, entered June 29, 1972, denying motion to dismiss the complaint, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs and without disbursements, and with leave to serve an amended complaint in accord with this memorandum within 20 days after the date of entry of the order herein. This is an action by a wife to reform a separation agreement to insert in it a clause that the plaintiff wife is the beneficial owner of one half of the corporate securities now registered in the name of the defendant husband. It is claimed that such a clause was proposed and rejected by the husband and the wife signed the agreement knowing that the clause had not been included but claiming she signed under duress of circumstances. An instrument cannot be reformed to include a provision that the parties advisedly omitted, no matter what the reason for the omission. To do so would constitute the making of a new contract for the parties, a power denied to the courts. The complaint, however, does allege facts from which it might be inferred that the wife is entitled to have a trust impressed on the said securities. Permission to amend to set out such a cause of action, if so advised, is granted.
Concur — Stevens, P.J., Nunez, Kupferman, Steuer and Tilzer, JJ.