Opinion
May 22, 1967
Appeal from a judgment in favor of the plaintiff rendered in the County Court of Ulster County in the amount of $5,375.84. On March 30, 1962, plaintiff and his wife entered into an agreement with the defendants, who are plaintiff's nephew and the latter's wife, which provided that in return for a transfer to these defendants of all of plaintiff's assets, defendants would undertake the care, maintenance and medical expenses of plaintiff and his wife for the remainder of their lives. Plaintiff transferred to defendants all of his lifetime accumulated assets consisting of real property valued at $7,000, savings accounts in the amount of $9,492.41 and various other items of personal property. At the time of the execution of this agreement, plaintiff was 81 years of age. During the ensuing year, his wife died. In June of 1963 plaintiff became dissatisfied with the care being given him and arrangements were made to have him admitted to the Knights of Pythias Home, one of the conditions to his admission being that a health insurance policy be secured and its continuance guaranteed. Defendants agreed to provide the guarantee. With this understanding, plaintiff on June 21, 1963 executed a general release to defendants. The guarantee was never provided by defendants and plaintiff did not enter the Knights of Pythias Home. Within a few days, plaintiff became ill and was admitted to a hospital where he still remains. In this action for hospital expenses which plaintiff has incurred, defendants set up the general release as a bar. Upon the trial, defendants did not rebut or refute the testimony that the release was executed on condition that the guarantee was to be made and delivered by them, nor did they offer any testimony at all. The trial court properly determined that the release was conditioned on plaintiff's admission to the home and, perforce, was not to be given effect except upon the happening of the condition, which never occurred. Defendants' contention that parol evidence is not admissible to vary the express terms of the release, is misplaced. The evidence complained of was not offered to contradict its terms, but only to show the condition precedent. "Evidence that the instrument was delivered conditionally does not contradict the writing within the meaning of the parol evidence rule; that rule presupposes the existence of a valid contract. The evidence in question is for the purpose of showing that there is no valid contract between the parties, because there is no finality of utterance." (22 N.Y. Jur., Evidence, § 632.) Judgment affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.