CoMSTOCK,  Ch.  J.  The  object  of  the  suit  was  to  recover  the
sum  of  $4,000,  in  which  the  defendant,  by  a  fire  policy,  insured
the  plaintiffs.  In  the  complaint  it  was  stated  that  a  certain
clause  in  the  policy  descriptive  of  the  subject  of  insurance  was
inserted  by  mistake,  and  that  the  defendants,  taking  advantage
of  that  clause,  had  refused  to  pay  the  loss.  The  prayer  of  the
complaint  was  for  the  recovery  of  the  $4,000 ;  and,  if  necessary,
that  the  contract  be  reformed  by  striking  out  the  clause  in
question.  The  case  was  tried  before  Mr.  Justice  Ingraham,  who
dismissed  the  complaint.  The  decision  proceeded  solely  on  the
ground  that  the  plaintiffs  had  not  made  out  a  right  to  have
the  contract  reformed ;  but  no  determination  was  made  that  the
plaintiffs  were  not  entitled  to  recover  on  the  policy  as  it  actually
was.  The  learned  Justice  was  of  the  opinion  that  such  a  re-
covery could  not  be  had  without  instituting  a  new  suit,  and  the
judgment  was  accordingly  without  prejudice  to  the  right  of
bringing  another  action.  But  the  plaintiffs  afterwards  ascer-
tained that,  by  a  provision  in  the  policy,  actions  must  be  brought
within  twelve  months  after  a  loss,  and  that  it  was  too  late  to
begin  de  novo.  They  then  moved  the  special  term  to  amend  the
order  of  dismissal,  by  inserting  leave  to  file  a  complaint  "at
law"^  in  the  same  action,  and  an  order  granting  such  leave  was
made.  From  this  order  the  defendants  appealed  to  the  general
term,  where  the  same  was  reversed,  and  from  the  order  of
reversal  the  plaintiffs  appealed  to  this  court.  The  defendants
move  to  dismiss  this  appeal.
