Henry v. Agostini

PRYOR, J. The argument of the appellants proceeds on the assumption of power in this court to reverse the judgment because contrary to the weight of evidence, whereas our only function, is to ascertain whether the findings of the trial judge be supported by any competent evidence. Farley v. Lyddy, 8 Daly, 514; McEteere v. Little, Id. 167. In resistance to a recovery by plaintiff for work and material on defendants’ buildings, the defenses were— First, that the contract was not with defendants; and, secondly, nonperformance of the contract by the plaintiff. As upon both issues, the plaintiff produced sufficient proof to sustain the findings, we are concluded by the affirmance at general term. Dearing v. Pearson, 8 Misc. Rep. 270, 28 N. Y. Supp. 715. Conceding such evidence, the defendants challenge its competency. By written contract the plaintiff engaged to furnish frames and sashes for “windows” in defendants’ buildings, and the question is whether parol evidence was admissible to show that only exterior, and not interior, windows were intended. In the popular sense, undoubtedly, the opening in a light shaft is not a “window,” and yet, among builders, the word may be so understood. Being susceptible, therefore, of diverse meanings, the equivocal contract was open to oral explanation,—emphatically sp when the object of the evidence ws.s to identify the subject-matter of the agreement. Paper Co. v. Moore, 104 N. Y. 680, 10 N. E. 861; Dwight v. Insurance Co., 103 N. Y. 342, 8 N. E. 654; De Camp v. McIntire, 115 N. Y. 258, 22 N. E. 215; Campbell v. Jimenes (Com. Pl. N. Y.) 23 N. Y. Supp. 333, again on appeal 7 Misc. 77, 27 N. Y. Supp. 351. Though the question calling for the contents of the plan were irregular, the answer is proper, since it speaks only to the condition of the paper when given to the witness, and not to its present appearance. If competent, claim the defendants, the same sort of evidence was allowable to them, but the court ruled otherwise. The offer rejected was of bids and estimates for the work by others, but no such proof was introduced by the plaintiff, and it was plainly irrelevant to the issue in controversy. The fact that others understood the plan to include interior windows, and proposed to furnish them for a little more than the plaintiff charged, tends in no legal sense to ascertain the intent of the contract as accepted by the' parties. Besides, acts and declarations inter 39 alios could not be received to affect the plaintiff. Newhall v. Appleton, 124 N. Y. 668, 26 N. E. 1107; Id., 102 N. Y. 133, 6 N. E. 120; Rutherford v. Schattman, 119 N. Y. 604, 605, 23 N. E. 440; 1 Greenl. Ev. § 52. Judgment affirmed, with costs. All concur.