Lerner v. Roth, 136 N.Y.S. 61

Lerner v. Roth

136 N.Y.S. 61 | N.Y. App. Term. | 1912

LEHMAN, J.

Plaintiff sues upon a written contract for the display of defendant’s advertisement “on the advertising drop of the Gotham Theater.” The pleadings were oral, and the defense originally pleaded was a general denial. At the trial, however, for the purpose of permitting the introduction of evidence of parol representations made prior to the written contract, the answer was amended by adding a plea of fraud. These representations were of two kinds: First, that the contract could be canceled at the end of each week; second, that the advertisement was to be “permanent” and constantly in the view of the audience in the theater.

[1] The first of these alleged representations was distinctly promissory in nature, and was directly contradicted by the terms of the contract: “This contract not subject to cancellation.” This evidence is not material upon the issue of fraud, but is merely an attempt to contradict the terms of the-written contract, which defendant read before signing. The admission of this evidence alone, in my opinion, requires a reversal of the judgment.

[2] The evidence of the other representations would be material upon the issue, of fraud only if they are construed to be representations of the nature of the “advertising drop.” The defendant, however, admits that he knew that the “advertising drop” was a curtain, which was to be rolled up and down, and not constantly displayed. It is not disputed that this drop forms the background .of street-scenes,, and was used as often as required. To enlarge its meaning, so as to include a permanent display, when defendant himself admits that he understood that the curtain was not to be constantly displayed, would be to permit the express contract to be varied.

[3] It is, perhaps, only fair to point out that the trial justice erred, *63in the admission of evidence offered by the plaintiff to prove his prima facie case, as well as in the admission of evidence to prove the defense. Since, however, the judgment was rendered in tavor ot the defendant, such errors cannot be considered upon this appeal.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.