Goldstein v. Leichter — 123 N.Y.S. 2

Majority

p. 2

GOLDSTEIN v. LEICHTER.

(Supreme Court, Appellate Term.

May 24, 1910.)

Headnote

Evidence (§ 465*)—Parol Evidence.

A building contractor, alleging substantial performance of the written contract, may not, over the objection of the owner, prove such performance by proving an oral agreement materially varying the terms of the contract.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1899, 2044, 2065; Dec. Dig. § 465.*]

Page, J., dissenting.

p. 3

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Morris Goldstein against Adolph Leichter. From a judgment for plaintiff, defendant appeals.

Reversed, and new trial ordered.

Argued before SEABURY, LEHMAN, and PAGE, JJ.

Abraham Leichter, for appellant.

Leon Dashew, for respondent.

This action was brought to recover for a balance alleged to be due for services rendered and materials furnished under a building contract made between the parties. The complaint alleged substantial performance. Upon the trial, the plaintiff was permitted to give testimony of an oral agreement which materially varied the terms of the written contract upon which he declared. The questions soliciting this evidence were objected to by the defendant, overruled by the court, and an exception taken to the erroneous rulings.

The facts adduced by the plaintiff were insufficient to establish substantial performance of the contract, and conclusions to which he testified over the defendant’s objections and exceptions were erroneously-permitted to remain in the record. For the errors above set forth, the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

LEHMAN, J., concurs. PAGE, J., dissents.