Majority
p. 956Lawes Coal Company, Inc., Appellant, v. Paul Englander et al., Respondents. Supreme Court, Appellate Term, First Department, February 16, 1943.
Yale Wilner for appellant.
Harry J. Halperin for Paul Englander, respondent.
S. Michael Ress for Max M. Zimmerman, respondent.
Defendants’ parol evidence of delivery of the written agreement in escrow upon an unperformed condition, admitted over plaintiff’s objection, tended to vary the clear, concise, unambiguous, written' agreement in which defendants
p. 957
“ hereby unconditionally agree to pay the obligation ” et cetera. Such parol evidence was inadmissible. (Camp v. Horn, 208 App. Div. 122 ; Thomas v. Scutt, 127 N. Y. 133 .) In addition, the alleged oral escrow agreement testified to by defendant Eng-lander was unsupported by any other evidence. It was denied by every other person who was present at the creditors’ meeting when the agreement was made and who testified at the trial, including the alleged escrow agent who was one of the several attorneys who represented the various parties.
Judgment reversed, with thirty dollars costs, and judgment directed for plaintiff as prayed for in the complaint, with interest and costs.
McCook and Hammer, JJ., concur. Rosenman, J.: I concur in the result on the ground that the judgment was clearly against the weight of the evidence.
Cases cited
- Thomas v. Scutt 127 N. Y. 133 p. 957