Opinion
December 30, 1942.
The plaintiff, as administratrix of the goods, chattels and credits of Frederick W. Behnke, deceased, brings this action to recover an unpaid balance due on the salary of her intestate, while acting as pastor for the respondent. After trial before the court without a jury, the plaintiff's complaint was dismissed upon the ground that there was a mutual modification of the contract. Judgment reversed on the law and the facts, with costs, and judgment directed in favor of the plaintiff for the sum of $4,175, with interest from July 5, 1940, with costs. It is conceded that if there was no modification of the resolution adopted on January 9, 1934, fixing the plaintiff's intestate's salary at the sum of $1,500 per year, the defendant owes the amount demanded in the complaint. In an effort to show such a modification, testimony of the alleged conversations had with plaintiff's intestate was given by certain members of the congregation; some such conversations were held prior to the adoption of the resolution fixing the salary, and some thereafter. In our opinion this evidence was inadmissible to modify the formal resolution shown in the minutes of the corporation. ( Dusenberry v. Sagamore Development Co., 164 App. Div. 573; Indian Refining Co. v. Buhrman, 220 Fed. 426.) Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.