Driscoll v. Colby

161 A.D. 922, 145 N.Y.S. 681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1914
• Status: Published

Opinion

Hotchkiss, J.:

The plaintiff borrowed about $7,000 from the defendant, for which plaintiff gave defendant his collateral notes pledging certain cemetery “ Certificates of Interest ” therefor, with the usual power of sale. These certificates provide that the holders are entitled from time to time to receive certain moneys from the proceeds of the sale of cemetery lots. Plaintiff claims that when he gave to defendant the notes in suit it was on the oral agreement that they should be paid from the moneys collectible under the certificates. The agreement on which plaintiff’s alleged equities depend is denied in toto, and it is not claimed that defendant is not abundantly able to-respond in damages. But the complaint contains no equities. In Jamestown Business College Assn. v. Allen (172 N. Y. 291) the distinction between oral conditions subsequent affecting the terms of a written instrument unconditionally delivered, and agreements cotemporaneous with the delivery of a written instrument and establishing conditions affecting such delivery, are plainly set forth. The rule concerning oral testimony to alter or contradict written agreements was further explained in Smith v. Dotterweich (200 N. Y. 299, 305), where it was said: “When the oral testimony goes directly to the question whether there is a written contract or not, it is always competent; but when the effect of the oral testimony is to establish the existence of a written contract, which it is designed to contradict or change by parol, then the spoken word must yield to the written compact.” The order should be reversed, with ten dollars costs and disbursements, and the motion for injunction denied, with ten dollars costs. Present—Ingraham, P. J.., McLaughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.