18 N.Y.S. 827 | N.Y. Sup. Ct. | 1892
An important, if not the controlling, question in this ease is whether the referee properly admitted paroi evidence to show that before and at the time of the delivery of the deed from the defendant to plaintiff’s husband it was agreed by the parties that the defendant should retain the use of the premises during his life. Although this question is controlled by the rules of evidence, yet the solution involves a substantial determination of the controversy between the parties. The rule invoked by the appellant is that making paroi evidence inadmissible to contradict or vary the terms of a -written instrument. The existence of this rule cannot be disputed, but there are exceptions to it, and it is not always easy to determine whether the evidence is within the rule or falls under some of the exceptions. In the case before us the plaintiff’s action was to recover the possession of certain real property to which she claimed title under a deed from her husband, to whom the defendant had conveyed the premises in fee. The defense interposed,'and which prevailed, was that, previous to and when the deed was executed and deliv
All concur.