Strauss v. Abraham Levitt & Sons, Inc.

244 A.D. 739 | N.Y. App. Div. | 1935

— Order of the County Court of Nassau county denying defendant’s motion to dismiss the second cause of action alleged in the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs, with leave to plaintiff to serve a further amended complaint within ten days from the entry of the order herein, if so advised. In the event that plaintiff fail to plead anew, the defendant shall have twenty days from the entry of the order herein in which to answer. The representations or warranties made prior to the execution of the written contract involving the purchase of real property by the plaintiff and its sale by the defendant are to be deemed merged therein and may not be proved by parol testimony. (Eighmie v. Taylor, 98 N. Y. 288.) The oral representations made subsequently to the written contract are without consideration in the absence of appropriate allegations to the effect that a new and superseding contract had been entered into. Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.