Opinion
May 12, 1948.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Judgment and order reversed on the law and facts, with costs, and motion to strike out the answer and for summary judgment denied, with $10 costs. Memorandum: It appears from the face of the instrument sued upon that it was executed as a part of a transaction involving the sale and purchase of a grocery store, including the real estate, stock, fixtures and equipment. The apparent intent was to state the balance owing and the manner of payment. Upon examination of the writing, it may be seen that it is obviously incomplete. The first sentence provides that the balance amounting to $3,054.20 is to be paid one month after date without interest. The final sentence states how payment shall be made viz., from the proceeds of the loan then pending, after which any balance remaining will be paid by giving a new note according to terms to be agreed upon between the parties. The writing is silent as to how payment shall be made in the event that the defendants, for any reason, fail to obtain the loan. The defendants plead in their answer and set forth in their affidavit that it was agreed that if defendants failed to obtain the loan, payment would then be made by giving a series of monthly notes. Such an agreement is not inconsistent with the writing. Where the written instrument is obviously not the complete contract, oral evidence not inconsistent with the writing may be given to show what the entire contract really was. ( Thomas v. Scutt, 127 N.Y. 133, 138; Routledge v. Worthington Co., 119 N.Y. 592; Beattie v. New York Long Island Constr. Co., 196 N.Y. 346, 355; Ruppert v. Singhi, 243 N.Y. 156, 160.) All concur. (The judgment is for plaintiff is an action on a promissory note. The order struck out defendant's answer and directed judgment in favor of plaintiff under rule 113 of the Rules of Civil Practice.)