Opinion
November, 1928.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Merrell, Finch, McAvoy and O'Malley, JJ. Judgment and order appealed from by the defendant reversed, with costs, and the complaint dismissed, with costs Order appealed from by the plaintiff affirmed.
Upon the appeal of the defendant from the judgment rendered in plaintiff's favor, based upon the plaintiff's claim for expenses in connection with his contract with the defendant, and which the plaintiff sought to establish by parol evidence, we are of the opinion that the verdict of the jury was clearly against the weight of the evidence, both oral and documentary, and that the proof of expenses which the plaintiff claimed to have incurred was so indefinite as to lack sufficient probative force to justify the verdict rendered. Moreover, we are of the opinion that the court erred in receiving parol evidence offered to establish plaintiff's claim for expenses. The contract between the parties was in writing and was complete in its terms. The court erred in permitting the plaintiff to testify as to an alleged oral promise of the defendant to pay the plaintiff's expenses alleged to have been made prior to the making of the written contract between the parties. All prior negotiations between the parties were merged in the written contract. The court, therefore, erred in receiving parol evidence, which parol evidence was the only basis for the jury's verdict. The judgment in plaintiff's favor and the order denying defendant's motion to set aside the jury's verdict should, therefore, be reversed, with costs, and plaintiff's complaint dismissed, with costs, and the order appealed from by the plaintiff affirmed.