Ganger, Inc. v. Angeli

159 Misc. 464, 287 N.Y.S. 948, 1936 N.Y. Misc. LEXIS 1151

Opinion

Per Curiam.

The trial judge erred in admitting oral evidence of conversations claimed to have been had prior to the execution and delivery of the written contract. Even with that evidence in the case the finding that the so-called item one of the contract was for the delivery of round top tables, not square tables, is clearly contrary to the terms of the contract calling for the furnishing of two “ 36 x 36 ” tables. Further, the decision of this controversy is governed by the “ special agreement ” of the parties (Pers. Prop. Law, § 125, subd. 4), not by subdivisions 1 and 3 of that section held to be controlling in Portfolio v. Rubin (233 N. Y. 439).

Judgment reversed, with costs, and judgment directed for plaintiff for the possession of the chattels retained by defendants, with costs.

All concur. Present — Ltdon, Hammer and Frankenthaler, JJ.