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Henry v. Agostini

66 N.Y. St. Rep. 536 Court N.Y.C.P. Decision date 1895-04-01 English

Delivered by Pryor, J.

Contents

Majority

p. 536
Ralph Henry, Resp’t, v. Joseph Agostini et al., App’lts.
(New York Common Pleas, General Term,
Filed April 1, 1895.)

Headnote

1. Evidence—parol—Ambiguities. \
In elucidation of an ambiguity in a written contract, evidence is admissible of conversations and circumstances attending the negotiation of the-agreement.
2. Same—Acts and declarations.
Acts and declarations inter alios are not admissible to affect the parties-to an action.
3. Appeal—City court—Review of evidence.
Affirmance of a judgment by the general term of the city court precludes-all review of the evidence by this court, except to ascertain if there be any to support the judgment.
Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.
Henry L. Burnett, for app’lts; Stewart & Macklin, resp’t.

The argument of the appellants proceeds on the assumption of power in this court to reverse the judgment because contrary to the weight of evidence, whereas our only function is to ascertain whether the findings of the trial judge be supported by any competent evidence. Farley v. Lyddy, 8 Daly, 514 ; McEteere v. Little, Id. 167. In resistance to a recovery by plaintiff

p. 537
for work and material on defendants’ buildings, the defenses were —First, that the contract was not with defendants ; and, secondly, nonperformance of the contract by the plaintiff. As upon both issues, the plaintiff produced sufficient proof to sustain the findings, we are concluded by the affirmance at general term. Dearing v.. Pearsan, 8 Misc. Rep. 270 ; 59 St. Rep. 201 .

Conceding such evidence, the defendants challenge its competency. By written contract the plaintiff engaged to furnish frames and sashes for “windows” in defendants’ buildings, and the question is whether paroi evidence was admissible to show that only exterior, and not interior, windows were intended. In the popular sense, undoubtedly, the opening in a light shaft is not a “window,” and yet, among builders, the word may be so understood. But susceptible, therefore, of diverse meanings, the equivocal contract was open to oral explanation,—emphatically so when the object of the evidence was to identify the subject-matter of the agreement. Manchester Paper Co. V. Moore, 104 N. Y. 680 ; 5 St. Rep. 747 ; Dwight v. Insurance Co., 103 N. Y. 342 ; 3 St. Rep. 115 ; De Gamp v. McIntire, 115 N. Y. 258 ; 26 St. Rep. 266 , Campbell v. Jimenes, 23 Supp. 333, again on appeal 7 Misc. 77 57 St. Rep. 480 . Though the question calling for the contents of the plan were irregular, the answer is proper, since it speaks only to the condition of the paper when given to the witness, and not to its present appearance. If competent, claim the defendants, the same sort of evidence was allowable to them, but the court ruled otherwise. The offer rejected was of bids and estimates for the work by others, but no such proof was introduced by the plaintiff, and it was plainly irrelevant to the issue in controversy. The fact that others understood the plan to include interior windows, and proposed to furnish them for a little more than the plaintiff charged, tends in no legal sense to ascertain the intent of the contract as accepted by the parties. Besides, acts and declarations inter alios could not be received to affect the plaintiff. Newhall v. Appleton, 124 N. Y. 668 ; 36 St. Rep. 697 ; Id. 102 N. Y. 133 ; Rutherford v. Schattman, 119 id. 604, 605; 28 St. Rep. 847 ; 1 Greenl. Ev. § 52. Judgment affirmed, with costs.

All concur.

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