Majority
p. 758Howard O. Wood, as Executor, etc., of William H. Schabehorn, etc., Deceased, Respondent, v. Joseph P. McCorry and Teresa M. McCorry, His Wife, Appellants.
Order, in so far as it struck out the counterclaim, modified by denying the motion to strike out said counterclaim, and as so modified affirmed, without costs. If there was a written contract for the sale of the property, as to which the record is silent, we leave open the question of'the application of the parol evidence rule as applied in Mitchill v. Lath ( 247 N. Y. 377 ). If the contract of sale was oral, we are of opinion that the agreement was not merged in the deed and that it is subject to establishment by proof. Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ., concur.
Cases cited
- Mitchill v. Lath 247 N. Y. 377 p. 758