Levi v. L. A. Thompson Scenic Railway

128 Misc. 465, 218 N.Y.S. 666, 1926 N.Y. Misc. LEXIS 789

Opinion

Per Curiam.

Since the agreement in suit is on its face a complete contract, separate and distinct from the agreement regarding the Hippodrome scene, it was error to admit evidence confusing the two separate contracts and regarding them as one agreement. The breach of a contract separate and distinct from the one in suit cannot be interposed as a defense to the agreement that is being litigated in the case at bar. (Dixon & Co. v. Bronston Bros. & Co., 171 App. Div. 552.)

Defendant’s Exhibit M should have been excluded from the evidence, since it is not a contract between the parties and it in itself tends to vary the terms of the contracts Exhibit I and Exhibit B.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, O’Malley and Levy, JJ.