259 A.D. 1038 | N.Y. App. Div. | 1940
In an action to recover damages for breach of a written contract, pursuant to which plaintiff agreed to render architectural services to the defendant, who was the trustee named in a purported testamentary trust, an order was duly made at Special Term denying plaintiff’s motion to strike from the amended answer the first, second and third defenses therein pleaded, as insufficient in law upon their face. From so much of that order as denied his motion to strike out the first and second defenses plaintiff appeals. Order, in so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. As matter of law the rights of the parties are to be measured by the terms of their unambiguous written contract dated December 31, 1936, annexed by copy to the complaint as Exhibit A. Therein are merged all prior or contemporaneous negotiations of the parties. This legal truism makes the first defense insufficient in law on its face. The second defense is likewise insufficient, for under that written contract the liability of defendant for damages by reason of its pleaded breach thereof is personal and individual, and not as trustee. The words of the contract intimating that defendant is trustee of the stated trust are merely desoriptio personas. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.