_ _ If the fifth cause of action is not of a class which will support a warrant of attachment, the joinder of that cause of action with one in <mask> will bar an attachment (Brown v. Chaminade Velours, 176 Misc. 238, affd. 261 App. Div. 1071). While the fifth cause of action was previously held by Special Term to be one for the recovery of a sum of money only and, therefore, one in which attachment was authorized (Corcoran & Kostelanetz v. Dupuy, 15 Misc 2d 456, mod. on other grounds *4656 A D 2d 776), that ruling does not constitute the law of the case and is not binding on the defendant, Jacques Dupuy, who was not a party to the action at the time the ruling was made. Moreover, the Appellate Division in passing upon the warrant of attachment issued against defendant, Gladys de Polignac, did not rule upon that point when it modified the decision at Special Term, but modified the decision solely upon the ground the fifth cause of action failed to show that plaintiffs were entitled to recover a stated sum. In deciding the question whether the fifth cause of action sounds in equity or at law, Special Term specifically relied on the rulings in Gross v. Miller (151 Misc. 727; cf. Gough v. Frost, 190 Misc. 927). These cases are distinguishable from the cause of action pleaded herein under section 170 of the Decedent Estate Law inasmuch as this cause of action is asserted against several legatees to whom assets of the estate of the testator have been paid, whereas in the cited cases only a sole legatee or distributee took the assets of the estate. In those circumstances no preliminary relief in equity was necessary to an award of a money judgment because no apportionment of the recovery had to be made pursuant to section 172 of the Decedent Estate Law. However, in the present case several legatees are involved and plaintiffs under the statutes (Decedent Estate Law, §§ 170, 172) are seeking to follow the assets of the testator into the hands of the legatees who are only liable in proportion to the extent of the property individually received by them. While only personal property is involved and no relief is necessary to establish a lien on real property, nevertheless, any money judgment must be predicated upon findings by the court apportioning the amount found to be due from the testator among the recipients of the testator’s bounty (Decedent Estate Law, § 172). Accordingly, the action under section 170 of the Decedent Estate Law is one sounding in equity (Herzog v. Marx, 58 Misc. 356; Howell v. Wallace, 37 App. Div. 323). Plaintiffs, by joining a cause of action which is not eligible for attachment with one in which an attachment is authorized, are not entitled to an attachment (Brown v. Chaminade Velours, 176 Misc. 238, affd. 261 App. Div. 1071). To permit plaintiff to sever and discontinue this cause of action would by indirection permit them to validate an attachment which was void in its inception.


In conclusion, the court (supra, at 931), found that: "In New York, a money judgment may be enforced against any debt, *610which is past due or which is yet to become due, or upon an assignable cause of action. N.Y.C.P.L.R. § 5201 (a). The same statute permits enforcement of a money judgment against any property which could be assigned or transferred, whether or not it is vested. N.Y.C.P.L.R. § 5201 (b). However, a trade name in gross is not 'property’ within the meaning of the statute. Compare Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652, 389 N.Y.S.2d 327, 357 N.E.2d 983 (N.Y.1976) (creditor can enforce debtor’s contractual claims to reimbursement which are due), with Glenmore Distilleries Co. v. Seideman, 267 F.Supp. 915, 918 (E.D.N.Y.1967) (a claim in <mask> '* * * being only inchoate, uncertain, and contested, has no present value * * * ’ and is not due certainly or on demand.)”


Plaintiff LePatner & Associates, LLP (LePatner LLP), a law firm, commenced this action on April 7, 2008, by filing a summons and complaint. In the complaint, LePatner LLP seeks to recover the sum of $187,107.61, together with interest, in unpaid legal fees and disbursements allegedly incurred by the Horowitz brothers and due plaintiff in prosecuting a lawsuit on their behalf (see Horowitz v Sterling Acquisitions Group, L.L.C., US Dist Ct, SD NY, case No. 9010/05 CLB [the District Court action]). LePatner LLP asserts causes of action based on theories of account stated, breach of contract, <mask>, and unjust enrichment.


Cassella v. City of Schenectady (281 App. Div. 428), cited by defendant, denied recovery to a physician for services rendered to the Fire Department at the request of its Chief. The position was in the noncompetitive class of the civil service. Plaintiff had not been appointed to the position. Recovery in <mask> was denied, the court stating that the fact the city accepted the benefits of the service so given did not entitle him to recover in quasi-contract; the requirements of the Civil Service Law may not be avoided. But the court went on to say (281 App. Div. 432): “ Recovery may be allowed against a municipality in quasi contract for benefits received under an unenforcible contract where the invalidity of the contract was due to a mere irregularity or a technical violation (e.g., Ward v. Kropf, 207 N. Y. 467; cf. Rosasco Creameries, Inc., v. Cohen, 276 N. Y. 274) but where the making of the contract flouted a firm public policy or violated a fundamental statutory restriction upon the powers of the municipality or its officers, recovery in quasi contract is uniformly denied. (McDonald v. Mayor, 68 N. Y. 23, 28; Seif v. City of Long Beach, 286 N. Y. 382; Brown v. Mt. Vernon Housing Authority, 279 App. Div. 794; 6 Williston on Contracts [Rev. ed.], § 1786A; 2 Restatement, Contracts, § 598.) ”


While the employment of an attorney by a client is largely governed by the contractual provisions of the retainer, elements of trust and confidence endemic in the attorney/client relationship add a dimension to the retainer beyond the terms of the retainer agreement. Thus it has consistently been held in this jurisdiction that irrespective of the express terms of employment, a client may at any time, for any reason, or without any reason, discharge his attorney (Gair v Peck, 6 NY2d 97; Martin v Camp, 219 NY 170). A necessary corollary of the rule that a client has an unfettered right to discharge his attorney at any time and for any reason is that the client, upon discharging his attorney, cannot be held liable for damages for breach of contract (Gair v Peck, supra; Martin v Camp, *865supra; Crowley v Wolf, 281 NY 59). An attorney employed under a contract providing for a specific fee, who is discharged without cause, is relegated to recovery upon <mask> for services rendered prior to discharge (Matter of Montgomery, 272 NY 323; Pratt v Hurley, 2 AD2d 983; Martin v Camp, supra; Myers v Myers, 2 AD2d 835). Moreover, an attorney, as an officer of the court, is judged as such, and contractual rights will yield to the court’s inherent and statutory power to regulate the practice of law, including the charging of fees for legal services (Gair v Peck, supra; Matter of First Nat. Bank of East Islip v Brower, 42 NY2d 471; Reisch & Klar v Sadofsky, 78 AD2d 517).


It is suggested that certain contracts “ should be in writing and the writing should be produced ” (Hamlin v. Stevens, 177 N. Y. 39, 50) ; but this cannot be taken as any intimation that where the delivery of the writing rests in part upon <mask> there is no room for the operation of the rule of caution and the requirement of clear proof.


This statement of the relative number of B. T. U.’s in oil and coal respectively, related to the efficiency of the oil heater which the plaintiff proposed to sell defendants, and install in their macaroni plant. Was the natural tendency of this affirmation an inducement to the defendants to buy the heater? The court so held on the trial when the defendants sought to show the prior discussion between the parties as to why they were induced to change from coal to oil. The plaintiff objected to its receipt on the ground that <mask> might not be received to vary the terms of a written instrument. The court then ruled that if the plaintiff contended the language was ambiguous and did not warrant this construction, he might show by parol evidence how the statement *180came to be inserted as a part of the contract. He did not accept the court’s offer. He should be bound by the court’s construction — unless the same is plainly erroneous.


Where the language of the will, even when read in the light of extrinsic circumstances, admits of but one construction, <mask> must be excluded. (Dwight v. Fancher, 245 N. Y. 71; Matter of Smith, 254 id. 283; Brown v. Quintard, 177 id. 75, 83; Matter of Disney, 190 id. 128; Matter of Milliette, 123 Misc. 745; Matter of Shumway, 138 id. 429.) This rule of exclusion of parol evidence has been applied by me only by reason of the peculiar facts of the present proceeding. Cases may arise where the proof of a ceremonial marriage prior to the will may be received despite the contradictory description of the legatee in the will. Again a valid common-law marriage, particularly to effect legitimizing of the issue, might be proven to have existed at the time of the will. Neither of these situations is present here.


Plaintiff contends that if the court finds that defendant is a "merchant”, for purposes of subdivision (2) of section 2-201 of the Uniform Commercial Code, then the letter of August 5, 1974 was a "partially integrated” contract (even though never signed by the defendant); and, the defendant may not contradict its terms by <mask>. This rationale is a common error, that even the courts have misconstrued. Ever since Trafalgar Sq. v Reeves Bros. (35 AD2d 194), the lower courts have construed subdivision (2) of section 2-201 that the failure to respond in writing within 10 days means that the terms of the writing are automatically accepted. Until recently, this misconception was so well entrenched that a trial court characterized it as "well settled law that by retaining the contract herein without written objection for a period of more than ten days, [one] accepted said contract”. (Matter of Beydoun, NYLJ Sept. 13, 1977, p 7, col 2.)


It is said in 1 American Leading Cases, that in order that a principal may be bound upon a written instrument not under seal, it is necessary that his name should appear in some part of the instrument. The rule is, that in suing on a written instrument, such as a promissory note, the whole liability must be made out on the instrument itself, and that <mask> is not admissible to alter or add. to a written agreement that is made the grounds of the action, and therefore a principal cannot be made liable on a written instrument, or by force of a written agreement, when his name does not appear in the instrument or agreement as a.party to the contract. If the names of the widow and heirs must be disclosed on the face of the instrument in order to subject them to liability, it is not done in this case, aud the plaintiff was rightly nonsuited. In Clinton v. The Hope Insurance Company (45 N. Y., 454), the action was upon a policy of insurance issued by the defendant, " insuring the estate of Daniel Ross ” for one year, on a cotton mill and the machinery therein.


Turning to the criteria for contract interpretation, if a contract provision is reasonably susceptible of more than one interpretation, facts and circumstances extrinsic to the agreement can be considered to determine the intention of the parties. (Chimart Assocs. v Paul, supra, at 572-573; 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245, 248 [1975].) <mask> of conversations, negotiations and agreements made prior to or contemporaneous with the contract in question (supra, at 248-249), and relating to the subject matter of the contract (Anchin, Block & Anchin v Pennsylvania Coal & Coke Corp., 284 App Div 940, 941 [1st Dept 1954], affd 308 NY 985 [1955]; Levinson v Shapiro, 238 App Div 158, 160 [1st Dept], affd 263 NY 591 [1933]), the relationship of the parties (St. Regis Paper Co. v Hubbs & Hastings Paper Co., 235 NY 30, 35-36 [1923]; J & R Lamb v Norcross Bros. Co., 208 NY 427, 431 [1913]), the purpose or object of the contract, or of a specific provision of the contract (Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6 [1976]; O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 55 [1939]; Manson v Curtis, 223 NY 313, 320 [1918]), and of industry custom and usage (Merritt Assocs. v Scollard, 161 AD2d 502 [1st Dept 1990]), is admissible to explain an ambiguity.


The first reported case upon the subject after the revision of 1830 was Adams v. Winne (7 Paige Ch. 97 [1838]). The opinion was written by Chancellor Walworth. On the question of evidence he wrote: “ I believe the revised statutes have settled the principle, which before had been left in doubt by the conflicting decisions of courts, that where the law presumes a revocation from a change in the testator’s family or property after the making of his will, <mask> of actual intention to the contrary is not admissible to rebut that presumption. * * * Although he differed with his associates as to the application of one of those arbitrary rules to a part of the case then under consideration, he was nevertheless constrained to admit that some of those rules, which evidently defeated the probable intent of the testator, had become settled'rules of property which the legislative power alone had a right to change.”


The claimant’s cross motion for examination of the Clerk of the Assembly, the Secretary of the Senate and the Counsel to the Governor is denied. Even if <mask> were admissible to impeach the accuracy of the entries in the official legislative journals (City of Rye v. Ronan, 67 Misc. 972, 977, supra) the claimant does not claim any inaccuracies or ambiguities. (Cf. Franklin Nat. Bank of Long Is. v. Clark, 26 Misc 2d 724, 728, 745.)


Moreover, we are making our decision based on the clear and explicit language in the covered perils provision of the insurance policy; that is, we do not find the contract terms to be ambiguous. Thus, we do not consider Doyle's expectations at the time of contracting based on extrinsic <mask> (e.g., Fireman's Fund's marketing materials, Doyle's homeowner's policy, etc.). (See Elliott v. Geico Indemnity Co. (2014) 231 Cal.App.4th 789, 801-802, 180 Cal.Rptr.3d 331 [" 'Although parol evidence may be admissible to determine whether the terms of a contract are ambiguous [citation], it is not admissible if it contradicts a clear and explicit policy provision' "].)


Plaintiff contends that <mask> would establish that the written contract does not contain the entire agreement between the parties. "The answer to this contention is that the contracts appear upon inspection to be in all respects complete and that beyond this our inquiry may not go * * * We may not have recourse to the parol evidence to ascertain *304whether they do in fact include the entire agreement of the parties.” (William H. Waters, Inc. v March, 240 App Div 120, 125.)


*602Since the alleged oral agreement was made before the plaintiffs employment was to commence and was to be performed for one full year thereafter, the agreement was covered by the Statute of Frauds (see, Tallini v Business Air, 148 AD2d 828; Ginsberg v Fairfield-Noble Corp., 81 AD2d 318; Gottlieb v Gins, 102 Misc 686; General Obligations Law § 5-701 [a] [1]). For a writing to meet the requirements of the Statute of Frauds, it must contain all of the material terms of the agreement (see, Cohon & Co. v Russell, 23 NY2d 569, 575). In an employment agreement, the duration of employment is a material term. Since the offer sheet did not include the duration of the plaintiffs employment, the Statute of Frauds was not satisfied. Furthermore, <mask> may not be used to prove that a writing constitutes the parties’ agreement if the writing is insufficient on its face to satisfy the Statute of Frauds (see, Scheck v Francis, 26 NY2d 466; 61 NY Jur 2d, Statute of Frauds, § 321). "It is settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” (Sabetay v Sterling Drug, 69 NY2d 329, 333; see also, Mayer v Publishers Clearing House, 205 AD2d 506; Doynow v Nynex Publ. Co., 202 AD2d 388). Consequently, the plaintiff was employed at will, and his complaint should have been dismissed (see, Mayer v Publishers Clearing House, supra; Doynow v Nynex Publ. Co., supra).


The only substantial question presented here is whether the parties did in fact so shape the transaction. It is fundamental that a corporation used for the sole purpose of borrowing money at a rate of interest which would be usurious if an individual were the borrower is nevertheless prohibited from raising the defense of usury, as is the beneficial owner of all the stock of the corporation. (Jenkins v. Moyse, 254 N. Y. 319; New York Credit Men’s Assn. v. Manufacturers Discount Corp., 298 N. Y. 512; Werger v. Haines Corp., 302 N. Y. 930.) That is apparently what the parties intended to do here; to use the corporation to borrow the money and to pay the bonus. But that was not the entire “ shape ” or form of the transaction. Although the corporation alone owned the property and executed the mortgage, the individuals and the corporation together executed the note and the extension agreement. If the effect of this was merely that the individuals were guarantors or sureties of the fundamental debt of the corporation, then such individuals are likewise prohibited from raising the defense or recovering the penalty, for they stand in no better position than the corporation whose debt they have guaranteed. (General Phoenix Corp. v. Cabot, 300 N. Y. 87; Salvin v. Myles Realty Co., 227 N. Y. 51.) If, on the other hand, the effect was that the individuals were actually principal obligors, as distinguished from accommodation comakers whose rights would be gauged by the same rules as those governing guarantors, then the defense of usury would be available to them. (Pink v. Kaplan, Inc., 252 App. Div. 490; Astra Pictures v. Schapiro, 182 Misc. 19; Rockmore v. Epstein, *333127 Misc. 526; Cabrera v. Olsen, 165 Misc. 374.) Such a determination involves factual issues which would preclude the granting of summary judgment to either side. A trial would be necessary to determine the exact status of the parties, and <mask> would be admissible to the extent indicated in the Pink case.


In the case at bar we have the fact of the ownership by the testator, at or about the time of drawing the will, of government bonds of the face value of $7,500, and of the separation of these bonds into several piles, one of which corresponded with one of the legacies.' From these facts counsel for the executors claim that the will should be read as though the words “ at par ” were inserted after the words “ government bonds,” in every instance where they occur in the will. Whatever inference may be drawn from0these circumstances, it is certain that when the testator reduced his intentions to writing the words he used do not admit of the construction now sought to be put -upon them. His original intention has become merged in the writing, and <mask> is not admissible for the purpose of contradicting or varying it in any way. Matter of Keleman, 126 N. Y. 73.


If a contract contains language which is unclear or ambiguous, such as a word which has acquired a specific trade meaning, <mask> may be used as an aid to interpretation of the language. (Richardson, Evidence [10th ed], § 625.) Similarly, parol evidence may be used to show the circumstances surrounding the execution of the writing, if the contract contains language of doubtful meaning. If it would not be possible for the court to ascertain the parties’ intention because of such a doubtful meaning, the extrinsic evidence of collateral facts and surrounding circumstances serves to assist the court in interpretation. (Richardson, Evidence [10th ed], § 626.)


We think, however, tbat tbe court erred in receiving evidence of the admissions of tbe defendant tbat bis bouse and lot in 'Water-town were incumbered by mortgage. Tbe existence of tbe incumbrance was a material fact for tbe prosecution to prove, and tbe best evidence was tbe mortgage itself, tbe record, or a certified copy of tbe record. 'Without. accounting for tbe absence of ■ these, secondary evidence was not admissible. Yerbal admissions of tbe defendant were no higher evidence than parol testimony of tbe contents of tbe mortgage. It seems to be tbe rule in this State tbat tbe admissions of a party are competent evidence, only when <mask> of tbe fact sought to be shown by such admissions would be competent. In Welland Canal Company v. Hathaway (18 Wend., 180), it was held tbat evidence resting in records cannot be supplied by proof of admission of the party sought to be affected by such evidence, of tbe existence of tbe facts appearing by such records. To tbe same effect are Jenner v. Joliffe (6 Johns., 9) and Hasbrouch v. Weaver (10 id., 246). Tbe prosecuting attorney acknowledged tbe force of this rule and endeavored to comply with it by offering in evidence a certificate of tbe clerk of Jefferson county, tending to show tbe existence.of a mortgage on defendant’s bouse and lot in Watertown, but tbe certificate, not containing a copy of tbe whole of tbe mortgage, it was excluded. The district attorney then offered himself as a witness, and testified, under objection, that, in a certain conversation, tbe defendant said to him that be owned a bouse and lot in Watertown worth $40,000, which was incumbered by a mortgage of $20,000, given to trustees to secure bonds negotiated by the trustees. This, we think, was clearly inadmissible. Not only was it an attempt to prove á record by parol, but it did not profess' to be evidence of tbe whole of tbe record, and so was subject to tbe very objection upon which the clerk’s cer*578tificate had been excluded. Moreover, the admission shows that the mortgage was special in its character, and the question whether it constituted an incumbrance on the property involved an inquiry as to its legal effect, for which purpose parol evidence of admissions is never admissible.


In Coleman v. First National Bank of Elmira (53 N. Y., 388) the plaintiff went to the defendant’s bank for the purpose of making a deposit of a sum óf money, and left the same with the teller and informed him that he wanted interest upon it; and thereupon the teller, without anything further being said, handed to him a certificate of deposit, upon the face of which it appears that the deposit was made with one S. R. Yan Campen personally, who was at that time the president of the bank ; nor did the certificate indicate upon its face that the deposit was made with the bank; .and the court held that the real issue was whether the bank or Yan Campen was the depositee. Unexplained, the fact that the plaintiff accepted the certificate of Yan Campen was strong evidence that the bank was not a party to the transaction; but it was .evidence only, and was subject to explanation by parol proof without violating any rule of evidence. The court further said: “ The rule does .not preclude a party, who has entered into a written contract with *163an agent, from maintaining an action against the principal upon parol proof that the contract was made in fact for the principal, where the agency was not disclosed by the contract and was not known to the plaintiff when it was made; or where there was no intention to rely upon the credit of the agent, to the exclusion of the principal. Such proof does not contradict the written contract. It superadds a liability against the principal to that existing against the agent. That <mask> may be introduced in such a case to charge the principal, while it would be inadmissible to discharge the agent, is well settled by authority.” In the same case it is also remarked: “ One who deals with an agent is not concluded from resorting to the principal unless it distinctly appears that, with full knowledge of all facts, he elected to take the sole responsibility oi the agent, and that he designed to abandon .any claim, against the principal.”


Domestic Relation of Husband and Wife.—In California the relation of husband and wife is a confidential relation, and when this confidence is violated by the refusal of one spouse to execute an oral trust on which land was transferred to him or her, as a trust to re-convey the land to the other spouse on request (Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689), or to hold the land for the joint use of the two spouses (Barbour v. Flick, 126 Cal. 628, 59 Pac. 122), or to so hold it during their joint lives and afterward to hold one-half thereof for the use of their daughter (Hayne v. Hermann, 97 *263Cal. 259, 32 Pac. 171), a constructive trust arises which a court of equity will enforce and to establish which <mask> is admissible. So in Thompson’s Lessee v. White, 1 Dali. 424, 1 Am. Dec. 252, 1 L. Ed. 206, where a wife, desiring her husband to have the use of her separate lands during his life, conveyed them to a third party, who reconveyed them to herself and husband as joint tenants under a parol promise on the part of the husband by will or other means to settle the lands on her sisters and children, but the husband died after the wife without having made such settlement, the court enforced such oral trust in behalf of the beneficiaries thereof against the heirs of the husband and a grantee of them with notice. In Brison v. Brison, 75 Cal. 525, 7 Am. St. Rep. 189, 17 Pac. 689, the court said: “If the relief cannot be granted in this case, we do not see how it could be granted if an attorney should, by his parol promise, induce his client to put the property in his name for some temporary purpose, and then refuse to re convey on the ground of the absence of a written acknowledgment; and so of principal and agent, parent and child, trustee and cestui que trust, etc.”


Applying the rules thus laid down to the case under consideration, it seems clear that this is a proper one for the admission of extrinsic evidence to ascertain what the testatrix meant by the expression, “the home and foreign missions.” Evidently, she meant two separate organizations or societies, as she gives two fourths of the rest and residue, to be divided equally between the home and foreign missions ; and it seems clearly a case of latent ambiguity which may be explained by parol. The case of Leonard v. Davenport is a case similar in many respects to the one under consideration. The Board of Home Missions of the Presbyterian church in the United States of America was allowed to take a legacy bequeathed to “ the Home Missionary society,” and against the claim of the American Home *522Missionary society, an unincorporated body, upon <mask> that the testator was in the habit of contributing to the Presbyterian committee of Home Missions, was a member of the Presbyterian church with which that society was connected, that the claims of the society were presented in the church of which the testator was a member, and that he had spoken kindly of the efforts of that society (Leonard v. Davenport, 58 How. Pr., 384). It is claimed, however, that the declarations of the testator can only be received where they are made prior to, or contemporaneously with, the execution of the will, and that declarations made afterward cannot be received, as the result might be to make a will entirely different from that which the testator intended. Kedfield lays down the rule, after a consideration of many English and American cases, that, where there is a latent ambiguity, ee any degree of latitude in regard to the admissibility of evidence to show the testator’s intention either by his acts or declarations before, at the time of, and after the execution of the instrument is admissible” (§ 40, p. 591), and that, in such cases, such evidence is received merely in aid of the construction.


Inasmuch as the invoices were fully integrated documents that set forth all the essential terms of the parties’ agreements regarding the sale of fish, Glatt’s claim, that prior to the invoicing lower prices were agreed upon, is barred under the <mask> rule, as codified in section 2-202 of the Uniform Commercial Code (Sunkyong Am. v Beta Sound of Music Corp., 199 AD2d 100, 101 [1993]; see also Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 522 [1991]; Raj Jewelers v Dialuck Corp., 300 AD2d 124 [2002]).


The most that can be said for the letters which were received in evidence is that they contain admissions which tend to support plaintiff’s claim. But admissions have no characteristic or quality peculiar to themselves, or distinguishing them from other facts in evidence. As Judge Collin said in Gangi v. Fradus (227 N. Y. 452, 457): “ In case they were made in ignorance of the facts or in an abnormal state of mind, or were based in part upon mere opinion, or were made casually or thoughtlessly or insincerely, or under like or analogous conditions or circumstances, they may, in reason, deserve slight consideration or value or none at all.” And so, admissions are subject to explanation or correction by <mask>. It follows that it was open to the defendant to establish all the facts and circumstances surrounding these letters, even though they contradict and vary the writings. (Komp v. Raymond, 175 N. Y. 102; Seeley v. Osborne, 220 id. 416.)


It was also contended that the testimony as to the understanding of the mercantile community on the construction of policies of insurance ought to have been received by the court. That there are many cases where <mask> is admissible to prove the understanding of parties to an instrument in writing, is admitted; but, as I think, this is' not one of them. The purpose, as avowed, for which parol testimony was to be introduced, was to prove a common usage. Mr. Phillips, the author of a valuable treatise on insurance, has collected under "one head, all the law relating to usage, affecting the construction of policies, to be found in the books of reported cases; none of which, however, meets the object which the counsel of the plaintiff in the court below wished to prove, viz. that the universal understanding of the insurance companies and the mercantile community is, that a policy similar to the one given in evidence is tantamount to a policy containing the words “ for account of whom it may concern.” The instances cited by Mr. Phillips are all in cases where a difference existed between the insurers and the insured, not as in the present case, between the part owners of the vessel. One instance was, whether sarsaparilla was a root included in articles perishable in their own nature ; another, whether rice was comprehended in the term corn; another, whether Revel, in the Gulf of Finland, was included in the terms, any port in the Baltic; and another, whether a vessel loading at Tigre Island was the same as Amelia Island, it being customary for vessels bound to and from Amelia *157Island to discharge and load at Tigre Island, &e. There are several other instances cited by Mr. Phillips, in which custom will have an effect in the construction of certain words in a policy ; but, in exmry instance, the difference in opinion was either on the side of the assured or the insurer. See Phillips on Insurance, 15 to 18. In Higginson v. Dall, 13 Mass. R. 99, Chief Justice Parker observed, that the policy itself is in contract between the parties, and whatever proposals are made, or conversations had between the parties prior to the subscription, they are to be considered as waived, if not inserted in the policy, or contained in a memorandum annexed to it. Poli cies cannot be contradicted or varied by any antecedent written agreement of the parties, or by parol evidence of what passed at the time of effecting the policy. The usage of merchants, with reference to which the parties are supposed to contract, is frequently resorted to, for explaining or defining the terms of a policy; for the terms used in policies very commonly acquire, by the well known usage of trade, a peculiar sense, distinct from the popular sense of the words. However proof of usage is not admissible to contradict the plain unequivocal language of a policy. 2 Phillips’ Evidence, 46.


Tenant, to the contrary, maintains that its said counsel did not agree to anything, but if all other electricity issues were resolved said counsel would "recommend to tenant, his client, that electricity rent escalation increases be effective from the date of the Con Edison increase rather from landlord’s demand.” Accordingly, tenant moved to strike such Geller testimony as incompetent, in violation of the <mask> rule and in the context of settlement or compromise offers.


*644In Thrifty Payless , the landlord provided estimates to the tenant regarding its likely share of common area expenses during lease negotiations, but the estimates were not included in the lease. The tenant's share turned out to be higher, and the tenant sued for fraud, alleging the landlord knew the common area expenses were material to the tenant and intentionally and negligently misrepresented them. ( Thrifty Payless , supra , 218 Cal.App.4th at pp. 1234-1236, 160 Cal.Rptr.3d 718.) The landlord's demurrer, in part, argued that the <mask> rule prohibited evidence of its " 'estimates.' " ( Id. at p. 1237, 160 Cal.Rptr.3d 718.)


matter]; Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 260 [trial court may utilize <mask> “to elucidate and explain an admission” so long as such evidence does not “contradict the plain meaning of” the response].)7 And even if the response could be read another way, substantial evidence supports the trial court’s reading. Public Storage’s failure to verify compliance is not evidence of a postcontractual abandonment of the insurance obligation because verification would require Public Storage to evaluate whether renters’ alternative insurance policies were adequate to cover the goods in storage, and the Insurance Code precludes Public Storage from engaging in such evaluation. (See Ins. Code, § 1758.76, subd. (b)(3) [self-storage facility must disclose to renter that “self- service storage facility and its employees are not qualified or authorized to evaluate the adequacy of the purchaser’s existing insurance coverage”].) And Public Storage’s unwillingness to terminate rental agreements for failure to comply with the insurance obligation (even if the prospective tenant expresses an intent not to comply)—whether due to an inability to evaluate compliance or due to a conscious choice—does not somehow retroactively invalidate that obligation. Accepting plaintiffs’ logic means that a party’s decision not to enforce the breach of a contractual provision means that the provision was never a contractual obligation in the first place. This is nonsensical, and we may not construe contracts to lead to such absurdities. (Civ. Code, § 1638; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 831.)


Evidence of extrinsic circumstances is frequently used to assist the court in the interpretation of language which a testator has used to express his testamentary intentions. “ <mask> is not admissible to show that the testatrix did not mean what she has said in words, though these words may have been chosen by the attorney who drafted the will ” rather than by the testator. (Dwight v. Fancher, supra.) In that case there was attempted to be proved that the word “ children ” was intended by the testatrix to include grandchildren. There, as here, the witness was the attorney and the draftsman of the will. His evidence was held to be inadmissible.


The second cause of action raises the question whether the entries in the official Assembly Journal can be collaterally impeached by <mask>. There can be no question that if effect is given to those entries in this case, the Governor’s veto of the bill must be held to have been timely. If there had been no recall, the pertinent 10-day period for executive action would have expired on June 4, 1971 and the bill would have become law without the Governor’s signature if he had not returned it with his objections to the Assembly on that day. However, if the bill was actually recalled by the Legislature for purposes of amendment, as reflected by the entries in the Assembly Journal, a new 10-day period would necessarily have started to run again upon the subsequent redelivery of the bill to the Governor.


By the statute of frauds, all contracts concerning the title to lands, which are not reduced to writing, and signed by the parties, are declared to be invalid. The wise provisions of this statute would be wholly defeated, if <mask> was admissible to enlarge and support a defective written agreement. But I need not dwell upon this point here. This court has recently decided, that in the case (Mann v. Mann,*) even of a will, a patent ambiguity renders it void, and that parol evidence; to explain the intent of the testator, cannot be let in to establish it. If the law is so, in relation to wills, which are entitled to the greatest benignity, the reasons upon, which it is founded, apply with greater force to a case like the present.


In any event, in view of the foregoing the court cannot find that the terms of the contract, as read within the four corners of the agreement, require the interpretation urged by the City. Rather, because it is reasonably susceptible of different interpretations the court finds the provision to be ambiguous. (Feldman v National Westminster Bank, 303 AD2d 271 [1st Dept 2003].) <mask> therefore would be admissible, and under such circumstances the meaning of the contract becomes a question for the trier of fact. (Geothermal Energy Corp. v Caithness Corp., 34 AD3d 420 [2d Dept 2006]; Pellot u Pellot, 305 AD2d 478 [2d Dept 2003].) Since absolutely no evidence is presented that settles the issue in the City’s favor, no prima facie showing that the contract calls for the increase to match the 2004 resolution has been made.


892 F.3d 1298, 1302 (Fed. Cir. 2018). Summary judgment is appropriate where the movant shows that there is no genuine dispute as to any material fact, and that the mo- vant is entitled to judgment as a matter of law. Id.; RCFC 56(a). We view the facts supported by evidence, as well as all inferences drawn therefrom, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Whether a taking occurred is a legal question based on factual underpinnings. Chi. Coating Co., LLC v. United States, 892 F.3d 1164, 1169 (Fed. Cir. 2018) (quoting Stearns Co. v. United States, 396 F.3d 1354, 1357 (Fed. Cir. 2005)). In a takings case, determining the scope of a com- pensable property interest is a question of law. Casitas, 708 F.3d at 1351 (citing Tex. State Bank v. United States, 423 F.3d 1370, 1378 (Fed. Cir. 2005)). Relevant here, whether a specific deed conveys a fee simple interest or an easement is a question of law that we review de novo under the law of the state in which the property interest arises, here the State of Texas. Chi. Coating, 892 F.3d at 1169–70 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). In Texas, the standard of review applied to summary judgment in a deed construction case “is tied directly to whether the deed is clear on its face.” BNSF Ry. Co. v. Chevron Midcontinent, L.P., 528 S.W.3d 124, 128 (Tex. App. 2017). An unambiguous deed is reviewed de novo, looking only to the four corners of the document and em- ploying the usual canons of textual construction. Id. (citing Clayton Williams Energy, Inc. v. BMT O & G TX, L.P., 473 S.W.3d 341, 348 (Tex. App. 2015)). Interpretation of an ambiguous deed, i.e., a deed with two or more reasona- ble interpretations, presents a mixed question of law and fact, as a court may consider <mask> regarding in- tent. Id. That said, “[a] deed is not ambiguous merely be- cause certain provisions of the deed conflict or appear to be internally inconsistent.” Id. Case: 21-1445 Document: 36 Page: 7 Filed: 01/20/2022


From this brief review of some of the leading cases on this subject, it is manifest that they do not all agree—some holding that the former trial is equally conclusive, whether pleaded by way of estoppel' or given in evidence on the trial, while others assert the doctrine that, though conclusive by way of estoppel, it is only material testimony when given in evidence-on the trial, and may be. rebutted. Some decide that the record itself must constitute the only evidence, while others maintain that <mask> may be produced to shew the ground of the former decision, and to explain, but not contra-*25diet the record. The decisions in this court have not been uniform, nor is it perfectly clear where the weight of author. ity or of argument lies. As the very point has been decided in this court in this cause, I forbear entering more at large upon the question, conceiving that we are bound by the former decision.


It may be doubtful if there was sufficient proof of a memorandum in writing of the contract subscribed by the parties to be charged. (2 Rev. Stat. 140, § 3, subd. 1.) It is not necessary that it should be comprised in one paper. It may be embraced in several, but they must be connected with, and refer to, each other, and the mutual relation of the writings must appear upon the face and cannot be established by <mask>, it being the policy of the statute to take the cases enumerated entirely out of the reach of verbal testimony. (Wright v. Weeks, 25 N. Y. 153; Stocker v. Partridge, 2 Robt. 193; Greenleaf on Evidence, § 268; Browne on the Statute of Frauds, 346, 3 ed., and cases there cited.)


Plaintiff cannot prevail on this motion for summary judgment. If, as it contends on the one hand, the "scope sheet” is the entire agreement, the contract fails for indefiniteness for the omission of any number of material terms, including the scope of work to be performed, price, and time of performance (see, Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482, supra), terms that plaintiff candidly concedes must be gleaned from the master agreement between Mount Sinai Hospital and the general contractor. But even if the "scope sheet” is regarded, for the sake of argument, as the entire agreement, defendant Kerby Saunders is not thereby barred from raising the issue that posting a performance bond was a condition precedent to the contract (Hicks v Bush, supra). Moreover, the burden to demonstrate that this condi*172tion was fulfilled and, therefore, that the contract became enforceable, falls upon plaintiff as the party to whom a duty is owed (Lindenbaum v Royco Prop. Corp., 165 AD2d 254, 258, quoting Calamari and Perillo, Contracts § 140, at 227-228). For the purposes of deciding the motion for summary judgment, only in the event that a valid and definite agreement can be established does the need for a trial in this matter arise, and then only for the purpose of permitting defendant Kerby Saunders to demonstrate, by the introduction of <mask>, that an otherwise complete and binding contract never become effective because it was conditioned upon the posting of a performance bond (Hicks v Bush, supra).


Looking then at the substantial matters involved, and proceeding to decide upon the construction of tins will, I feel bound to apply such rules of interpretation as prevail in Connecticut, wherever they have been indicated by the decisions *299of the courts. I do not find, however, any peculiar doctrine, exceptional to the general law relative to testamentary cases. In the first place, it is clearly established, that in the interpretation of the will, the intent of the testator, as gathered from the instrument in its application to surrounding circumstances, must govern (Holms vs. Williams, 1 Root R., 332); and that <mask> of the intention of the testator is inadmissible to vary the express terms of the will. (Avery vs. Chappel, 6 Conn. R., 270 ; Matthews vs. Saunders, 11 Conn. R., 144 ; Canfield vs. Bostwick, 21 Conn. R., 550.) How let us see what the intent of this instrument is, as evinced in its progressive stages. After directing the payment of his debts, Mr. Parsons makes a devise and bequest to his wife, and requires his executors to pay to her annually from his estate, the sum of seven hundred dollars in quarterly payments, until her marriage or decease. There is nothing peculiar in this provision for an annuity. It is payable “ out of the estate,” but those words are mere surplusage—it would have been so payable without them. It implies, of course, that a fund shall be reserved for that purpose, but the reservation of a fund for that purpose, does not imply a reservation for another purpose. It never has been pretended that a general provision for an annuity affects the question as to the vesting of the estate upon which it is a charge. In the next place, we come to the prominent and leading disposition of the will. The testator gives all the residue and remainder of his estate, real and personal, by the broadest words of description, to his executors in trust. That a trust does not prevent the vesting of the estate de jwre, in the cestui que trust, is an undeniable proposition. The legal title may be in the trustees, but they are mere repositories, and the equitable right is always held by courts of equity as vested on the testator’s death in the beneficiaries. The rules in regard to the vesting of testamentary bequests are not varied by reason of the intervention of a trust, unless it be that there is a stronger implication in favor of vesting where there is a trust than where there is not. (Van Wyck vs. Bloodgood, 1 Brad. Sur. R., 154, and cases-cited.) *300The main difference between a devise in trust and a direct devise, is, that in the former case there is a vested equitable estate (Doe vs. Ewart, 7 Adol. & E., 636 ; Phipps vs. Williams, 5 Simon R., 44); and in the latter a vested legal estate; and, in regard to personal property, direct legacies as well as bequests in trust, are effectuated only through the medium of the executors. (Davies vs. Fisher, 5 Bear., 201.)


The plaintiffs, for a second cause of action, set forth in their complaint that in September, 1865, the plaintiffs sold to the defendant twenty-three casks of wine, by which contract of sale the defendant was to return to the plaintiffs the casks containing the said wine, but that the defendant had neglected and refused to return the said casks. It appeared from the evidence that the sale of the twenty-three casks of wme was made by John J. Webber in his own name, but in fact as the agent of the plaintiffs. In this case it appears there was a regular bill of sale made out. By some apparent oversight, the bill of sale is omitted from the case, although stated to be contained therein; but, from what passed on the trial, we infer there was nothing in the bill of sale from which any obligation to return the casks could be inferred. If this was -so, and the bill of sale purported to be a bill of sale of twenty-three casks of wine, we think <mask> was inadmissible to add to or change the contract, by showing that at the time of the sale it was agreed that the defendant should return the casks. A sale of so many casks of wine imports a sale of the casks as well as the wine, unless the contrary expressly appears; and we think *335the court erred in the admission of parol evidence to show that it was agreed at the time of the sale that the defendant should return the casks. For the foregoing reasons, we think there should be a new trial in the case.


A. The Parties’ Claims and Counterclaims ..................... 12 B. The District Court’s Jurisdiction over the Dispute ..... 13 C. The District Court’s Resolution of All Claims and Counterclaims ............................................................. 15 D. Appellate Jurisdiction ................................................. 16 IV. Discussion ................................................................... 17 A. The Parties’ Competing Fraudulent Inducement Claims Have Different Fates: SodexoMAGIC’s Claim Survives; Drexel’s Counterclaim Does Not. .... 19 1. Common-Law Fraud Claims in Pennsylvania ..... 20 2. SodexoMAGIC’s Fraudulent Inducement Claim for Compensatory Damages Survives Summary Judgment............................................................... 23 a. SodexoMAGIC Presents Sufficient Evidence of a Misrepresentation as Well as Concealment. ...... 23 b. The District Court Did Not Abuse Its Discretion in Denying Drexel’s Motion to Strike Declarations by Three SodexoMAGIC Witnesses. ................... 28 c. Drexel’s Remaining Counterarguments for Upholding Summary Judgment in Its Favor Also Fail. .............................................................. 34 3. The <mask> Rule Does Not Bar Sodexo- MAGIC’s Claim for Fraudulent Inducement. ...... 36 a. Integration Clauses, the Parol Evidence Rule, and Fraudulent Inducement Claims Under Pennsylvania Law. ................................................ 37


The primary rule of contract construction is to ascertain the intent of the parties and give effect to that intention. If a contract is unambiguous, the intent of the parties is to be discerned from the contract alone based on the plain and ordinary meaning of the language used.[6 ] *497However, a contract may be ambiguous if it is susceptible to more than one interpretation, which is a legal issue determined by the court. If the ambiguity cannot be resolved within the four corners of the contract, the parties' intent can be determined by use of <mask>. Resolution of the ambiguity may then be a factual issue to be resolved by the finder of fact. Whelan , 379 S.W.3d at 846 (citations and internal quotation marks omitted). Whether the contract is ambiguous and whether G&G was entitled to prejudgment interest pursuant to section 408.020 are legal issues that we review de novo , but we defer to the trial court's factual or credibility determinations. See id.7


As before shown, the learned justice admits the <mask> did in fact contradict the writing. He, however, claims this rule is not inflexible, but has referred to no authority to sustain his position. And we know of none. The contrary doctrine we believe to be fundamental law, and we think there is no exception to it, Avhen the action is between the parties to the contract or their privies (1 Greenleaf on Evid. § 275 et seq.; Boorman v. Johnston, 12 Wend. 566, 573; Wilson v. Dean, 74 N. Y. 531; Thorp v. Ross, 4 Abb. App. Dec. 416). The latter case is very instructive, and we think decisive of this.


“ I, Flora Seymour, being of sound mind, hereby direct Mr. R. J. Davidson to -turn over to Schuyler C. Pew the four bonds now in his possession and belonging to me. “ It is my desire that if I should be taken away that the said •Schuyler iC. Pew have this property to use as he may desire in the Master’s work.” It is a familiar rule of construction that a testator’s intention must govern, if it be not inconsistent with rules of law, statutory *490-or otherwise. Such intention must, however, be gathered from, the language of the will itself; and extrinsic <mask> as to the -circumstances under which the will was executed is incompetent and inadmissible.


A full examination of this evidence does not seem to be necessary to a determination of this appeal. There is some uncertainty as to the exact time at which the alleged parol agreement was made. If it was subsequently to the delivery of the written lease the agreement was without consideration and void. Smith v. Kerr, 108 N. Y. 31. If the conversation occurred at or prior to its delivery the parol agreement was merged in the written lease and evidencé to contradict or vary its terms was inadmissible. This evidence did not come within the rule permitting proof of an *467independent collateral agreement. The written lease was, upon its face, a complete instrument.' The subject-matter of the agreement sought to be proved by parol was one which would naturally be included in the lease, and was not collateral. In fact the lease contained a provision that the lessor should “maintain the building in a habitable condition,” and also the usual provision that the lessee would surrender the premises in good condition. All this is inconsistent with the rule under which an independent collateral agreement resting upon <mask> may be admitted in a proper case.


Conversely, where the terms of an agreement are ambiguous, the introduction of <mask> is admissible to explain the meaning which has been given to certain words and/or terms. (Prince, Richardson on Evidence § 11-403 [Farrell 11th ed] [Parol Evidence to Show Custom or Usage].) In Dube v Horowitz (258 AD2d 724 [3d Dept 1999]), parol evidence was permitted to determine the intentions of the parties as to the meaning of the term “wages” in the separation agreement.


With respect to the first cause of action, defendant’s answering affidavit urges that the machine subject to the lease broke down and that plaintiff did not repair or maintain it. It also urges that plaintiff breached certain warranties that were made, expressly and impliedly, to the effect that the equipment was merchantable; i.e., fit for the ordinary purposes for which the equipment was to be used, and that it was fit for the particular use intended by defendant. Although this is set forth in somewhat conclusory fashion, nevertheless it would be sufficient to raise a question of fact unless the warranties alleged have either been properly disclaimed, or are barred of proof by application of the <mask> rule.


F&K argues that the assignment to Winston absolved the former of responsibility under the roof lease. But there is nothing in the record to indicate that a due diligence inspection was conducted at the time of the assignment, such as would lead to the conclusion that any structural damage occurred during Winston’s tenancy. Furthermore, <mask> could not be admissible as against F&K’s assignee. Winston was not a party to the two earlier leases, and thus could not be held liable on West Realty’s explanation of inadvertent omission. Dismissal of the breach of contract claim as against Winston was thus appropriate.


The introduction of <mask> in order to ascertain the cost of remodeling, the request by the tenant, what plans or what specific instructions had been given, and the amount of expenses that the tenant incurred in the reconstruction of the premises, did not vary or modify the terms of the lease. There was not any collateral agreement or condition precedent which should have been inserted in the lease, which in turn would have necessitated a preclusion of parol evidence. To hold that parol evidence could not be introduced in order to inform the court of the factual situation surrounding the work performed and the total expenses would have placed the court in the position of not being able to decide the case at all.


It is contended by the appellants’ counsel that notwithstanding <mask> is, in general, admissible to show the actual consideration, although it be different from that expressed in the deed, the rule is limited to cases where the inquiry is material to an action between the parties to the deed. It is not necessary to decide that point in the present case, for the reason that if any error was committed'at the trial in receiving the evidence, it was merely as to the order of proof. The plaintiff offered the evidence before he rested. It was not then material or necessary to his case, and if nothing had occurred subsequently to make it material, the reception of it probably would have been erroneous. The plaintiff having proved his bond and mortgage, was entitled prima facie to the relief demanded in his complaint without further proof. The burden of impeaching the consideration expressed in the mortgage and of showing fraud was on the defendant. For that purpose the defendant had a right to give parol proof of a different consideration from that expressed, and in fact he gave evidence to that effect. To that evidence it was competent for the plaintiff to reply, on the issue of fraud, and to give his version of the true consideration. All the evidence given by the plaintiff upon the subject, against the defendants’ objection, was material and admissible for that *560purpose, and if it had been offered after the defendant had opened the door to that inquiry, it would have been entirely unobjectionable. It is obvious that the defendant was not prejudiced by’the reception of the evidence before he took the case, as he was thereby advised of the strength of the plaintiff’s proof on that issue before he entered on his own.


It is the decided tendency of the courts to hold “ that no legacy is specific unless demonstrably so intended, and * * * generally incline in favor of considering doubtful bequests, general legacies, chargeable upon the security named, as the fund first to be applied.” Doughty v. Stillwell, 1 Bradf. 300. The <mask> requires that the codicil be construed as if it were:“ I give to Janet and Buth, $1,500 from the amount of $1,969.50, which their father owes to me.” Under such reading, the legacy so far as it is not paid from the demonstrated source is payable from the general estate. The decree will provide accordingly.


The question posed by this appeal is whether a claim for breach of an oral agreement was barred by the <mask> rule. The oral agreement was made in connection with a transaction by which three companies, of which Albert Kanno was the majority shareholder, were sold to two Delaware corporations. The transaction was documented principally by three writings, each of which had an integration clause.


A circumstance showing that, whatever the date of execution of this latter will, it must have been subsequent to March 14, 1884, is. that the testator purports therein to devise absolutely and in fee certain real estate in which, at the date of the execution of the will of March 14, 1884, he only had a life interest. Subsequent to the execution of that will, and on the 27th of June, 1884, Mr. Haviland’s three children, by a former wife, executed to him a deed of the premises referred to, which formed a part of the estate of the decedent’s former wife, the mother of *77the grantors. The undated will purports to devise back to two of these children a one-third interest each in this' identical property. Some doubts seem to have existed in the minds of counsel for the contestants of this later will as to the competency of parol proof to establish the date of execution. The Revised Statutes do not require that a will shall be dated. The date may be established or corrected by <mask> showing the real date of its execution. Schouler on Wills (2d ed.), 279. If it were permitted to indulge in conjecture it seems to me that the manner in which the defective date was inserted is readily explained. But a short time would elapse before the termination of the year, and in drawing the will for execution the last word to indicate the date was omitted in apprehension that it might not be executed until the new year.


If, as we have a right to presume from the preamble, the object of the statute was to prevent frauds and perjuries, and as a means to that end, a contract of sale was not allowed to be established by oral testimony, because it was a kind of evidence that could be readily fabricated, and otherwise defective and uncertain, it is to be remembered that the rules, which regulate the introduction, the bearing and the weight of testimony, were more imperfectly understood then than they are now. Baronet Gilbert’s treatise upon the law of evidence was notpublished until three quarters of a century after the passage of the statute, and even that* treatise, though extravagantly eulogized by Blackstone, is characterized now as “ a very meagre production,” (Marvin’s Legal Bib. 384), and how little *521the tests which are now every day applied to <mask> were then understood, resorted to or allowed, is familiar to every one who has perused the State trials.


When an integrated contract includes a fraud-insulating term – to form what may be called an ‘integration-plus’ contract – that extends the reach of the <mask> rule. In that circumstance, the parol evidence rule prevents the use of extrinsic evidence to vary the fraud-insulating term. And without such evidence, it is virtually impossible to establish the justifiable-reliance element needed for a fraud claim. As the Pennsylvania Supreme Court has explained for integrated contracts, “due to the parol evidence rule’s operation, a party cannot be said to have justifiably relied on prior representations that he has superseded and disclaimed.” Toy, 928 A.2d at 207 (emphasis added).


Again: The instrument offered in evidence in this case as a release of the debt was not executed in the names of the plaintiffs, or of either of them, or by Granniss & Meade as their agents or attorneys ; nor were the plaintiffs named, or even alluded to in that instrument. Where a contract is not necessary to be in writing to give it validity, the constituent may be bound by an agreement of his agent which is in fact made for his benefit, although he is not named at the time, and sometimes where he is not known to the party with whom his agent contracts; and even where it is necessary for» the contract to be in writing to give it validity, the constituent may be bound by it, if it appear in any part of the instrument that it was intended to be executed by his agent for him, in the character of agent merely. Story on Agency, 143, § 154, and cases there cited. But where it is necessary that the instrument to be executed by an attorney under a power should operate as the deed of the constituent, under seal, to convey an estate or interest, or to release a right, without a full compensation received or secured to be paid, it must not only appear to have been executed by the agent for the principal, but it must be executed in his name, so as to make it his deed, (a) Though, if the deed is actually made in the name of the principal and purports upon its face to be his deed, and not the deed of the attorney or agents for the principal merely, it is not necessary that a particular form of words should be used in the execution thereof. Wilkes v. Back, 2 East’s R. 142. Appleton v. Burks, 5 id. 148. A parol agreement for the release of a debt without satisfaction, or upon receiving a part thereof only, from the debtor, is not valid, either at law or in equity, without a release under seal; and <mask> to show that an instrument which is not a release was intended to be such, is inadmissible. Harrison v. Wilcox, 2 Johns. R. 448. Acker v. Phoenix, 4 Paige’s R. 305. The offer in this case, therefore, to prove by parol that the *336instrument executed by Granniss & Meade was intended to be something different from what, upon its face, it purported to be, was entirely inadmisssible for the purpose for which it was offered; and the evidence was properly rejected by the judge.


And in an early case in Virginia, it was said with respect to the admission of <mask> of the contents of a will, the probate records of which were destroyed during the war of the Revolution, that: “The rule is, that the best evidence that the nature of the case will admit of is to be received. On this principle, I think the evidence was admissible, though parol proof of the contents of an instrument must be generally very defective (it being seldom possible, after a lapse of time, that the witness can recollect the precise expressions in it, or their collocation, on which its meaning often depends), yet in aid of a long and continued possession in the defendants, and those under whom they claim, such testimony may be resorted to. It is the best evidence the nature of the ease will admit *437of”: Smith v. Carter, 3 Rand. 167. Hence the contents of a lost will may be proved by parol evidence: In re Lane’s Will, 2 Dana, 106; Lucas v. Brooke, 23 La. Ann. 117; Legare v. Ashe, 1 Bay (S. C.), 464. And likewise the existence or loss of the will may be shown by circumstantial evidence: Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Harris v. Harris, 10 Wash. 555, 39 Pac. 148. So, also, the presumption of revocation may be rebutted by either direct or circumstantial evidence: Matter of Johnson’s Will, 40 Conn. 587. And it is even held that evidence of testator’s character is admissible to show his tenacity of purpose and thus affect the probability of his revoking his will: Brown v. Brown, 10 Yerg. 84.


First. That by the admissions in the pleadings and the record aforesaid, the fact of wrongful eviction of the defendant by the plaintiff was conclusively established in such wise, that the fact of wrongful eviction could not be controverted in this action by any <mask> on the part of the plaintiff to show either that no such eviction had taken place, or that such eviction was lawful or under elder title.


14. apparent the trial court was thoughtfully attempting to comprehend the terms which the parties had negotiated. However, this record does not establish that appellant and the People had negotiated a deal wherein appellant agreed to “obey all laws.” Although the prosecutor made such an oral representation at the change of plea hearing, that condition does not appear in the written plea agreement. The parties’ mutual intent is governed at the time they formed their agreement, and it is found, if possible, solely in the contract’s written provisions. (Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1129.) The written plea agreement does not require appellant to “obey all laws.” There is no ambiguity in this regard. Consequently, we decline to modify the written agreement in this fashion or otherwise rely on <mask>. (See Toscano, supra, 124 Cal.App.4th at p. 345.) D. The Trial Court’s Comments In 2019 Are Instructive. In 2019, the trial court stated its belief that the disputed terms were ambiguous. The court noted that the modifier “on staff” could be read to only apply to the term “gassing” and it may not necessarily modify the terms “battery or assault.” In response to a query from the prosecutor, the court acknowledged that it believed appellant may have held a different understanding of that modifier at the change of plea hearing. As a result, the court believed that the written terms could still be deemed ambiguous as to appellant. These informative comments from the court in 2019 support our conclusion that appellant understood the plea agreement in a manner that she now advances in this appeal. As the trial court realized, appellant had likely not understood the terms in the same manner as the trial court had when it had memorialized the agreement during the change of plea hearing. The totality of this record supports appellant’s reasonable position that she accepted an offer to not incur any 115’s involving assaults, batteries or gassings, and those requirements only applied to staff. Under these unique circumstances, the plea agreement should be enforced in her favor. (See Toscano, supra,


The fact that the child’s father is alive is not conclusive against the assumption by a stranger of the place of the parent, but it affords some inference against it: Powys v. Mansfield, 3 Mylne & C. 359. On the question as to whether he intended to assume that relation <mask> is admissible, and the declarations of the testator allowed for that purpose: Gill’s Estate, 1 Pars. Eq. Cas. (Pa.) 139; Powys v. Mansfield, 3 Mylne & C. 359; Booker v. Allen, 2 Russ. & M. 270.


Nothing in the letter agreement between plaintiff and defendant Keslow, consisting of no more than a few short paragraphs, precludes the former from recovering his expenses for any work, labor and services that he performed in the course of functioning as a subcontractor. While "extrinsic and <mask> is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face” (Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 379), the letter, which is silent as to the parties’ respective obligations and lacks any sort of detail generally, does not appear to be the sum total of the arrangement between the two. Since the letter agreement is not a contract that sets forth the entire agreement between the parties, and is, therefore, not complete, clear and unambiguous on its face, the parol evidence rule does not bar proof, in the form of parol or extrinsic evidence, of the entire purported agreement (Chimart Assocs. v Paul, 66 NY2d 570, 573). Concur—Sullivan, J. P., Wallach, Asch and Williams, JJ.


In Mitchill v. Lath (247 N. Y. 377, 381) Judge Audbews stated that before <mask> may be received to vary the written contract, at least three conditions must exist: “ (1) the agreement must in form be a collateral one; (2) it must not contradict express or implied provisions of the written contract; (3) * * * Or again, it must not be so clearly connected with the principal transaction as to be part and parcel of it.”


Misnomer or misdescription of an intended beneficiary, whether an individual or a corporation, does not necessarily invalidate the bequest or devise. “ A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the object of the testator’s bounty can be ascertained. No principle is better settled than that <mask> is admissible to remove latent ambiguities, and when there is no person or corporation in existence precisely answering to the name or description in the will, parol evidence may be given to ascertain who were intended by the testator. A corporation may be designated by its corporate name, by the name by which it is usually or popularly called and known, by a name by which it was known and called by the testator, or by any name or description by which it can be distinguished from every other corporation; and when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may, in all cases be proved by parol. (St. Luke’s Home v. Association for Indigent Females, 52 N. Y. 191; Holmes v. Mead, Id. 332; Gardner v. Heyer, 2 Paige, 11; 1 Jar. on Wills, 330; 1 Redf. on Wills, 691, § 42, pl. 40; id., 695, pi. 49.) ” (Lefevre v. Lefevre, 59 N. Y. 434, 440.)


In the latter case, Justice Seldett, in delivering the opinion of the court, held that an error was committed in admitting <mask> to establish her intention to charge her separate estate, and- we are warranted, as I think, in understanding, from the report of the case, that a majority of the court held with him upon this ground alone, and that they would, with him, have held her liable, if her intention had in that case, as Mrs. Babcock’s has in this, been manifested in the writing subscribed by her.


The limited trial record now before us does not permit intelligent appellate review of the seemingly inconsistent findings made by the trial court in connection with the rent issues presented in the litigation. Most prominent among the issues that remain unresolved on this record is the proper interpretation of the petitioner’s ambiguously drawn letter of January 19, 2002, a document which, though the centerpiece of the parties’ appellate briefs, was virtually ignored during the trial proceedings. Since we view the desultory language of the letter as ambiguous, <mask> is required to determine its purpose and intent (see Blue Jeans U.S.A. v Basciano, 286 AD2d 274, 276 [2001]). While it may be that the unsatisfactory state of the record is attributable in part to the subtenants’ lackluster pursuit of their rent reduction defense, the fact remains that the correspondence relied upon by subtenants in support of that defense was put into evidence “on consent” and was apparently found by the court — albeit on an insufficient record — to constitute a binding rent reduction agreement. In this posture, fairness dictates that the matter be tried anew.


In the O’Neil case (280 N. Y. 50, supra), Judge Rippby, speaking for the court, said (pp. 55-56): “ The fundamental rule in the construction of all agreements is to ascertain the substantial intent of the parties [cases cited]. The purpose to be accomplished and the object to be advanced may be considered [cases cited] and may, if necessary, be shown by <mask> as bearing on the consideration for the written instrument [case cited]. If it is claimed by defendant that a construction should be placed on the contract other than has been indicated, or any doubt arises from the writing itself, the court must look into the intention of the parties to be derived not alone from the words used but it must be read, so far as they may be ambiguous, in the light of the surrounding facts and circumstances [cases cited].”


The claim that the contract was procured through fraud and that it is, therefore, not binding on respondent is not shown *426to possess merit. Respondent’s claim is really not that the contract signed was not to be a contract at all, but rather that the provisions of the contract between the parties were different from those contained in the signed document. (Such a claim violates the <mask> rule.


Inasmuch as the case was tried without a jury, I felt free to receive, over objection, the rather fragmentary <mask> offered by the bank and the defendants as to their course of dealing. This proof indicated that the church maintained its bank account with the plaintiff bank and had at various times bor*621rowed money from the bank upon its notes; that such notes, as well as checks on the account, had been differently signed and indorsed by the defendants in behalf of the corporation, according to changes in the regulations and directions of the church, brought to the notice of the bank; that the financial affairs of the church had latterly been intrusted to and conducted by its finance committee, of which the bank had notice; that the finance committee was composed of the president and treasurer and one other lay member; and that the printed form of checks, used by the church in 1914 and recognized by the bank as fixing the requirements for valid checks against the church’s account, showed the following manner of signature:


A case which is still cited by the higher courts as an authority on the question of when <mask> may be offered in such a matter is that of Mann v. Mann, 1 Johns. Ch. 231. In this case the question arose as to the propriety of allowing parol evidence to show the intention of the testator as to the meaning of the word *751“ moneys ” as used in Ms will. At pages 234-236 of the opinion the court stated as follows:


Under the so-called “ <mask> rule ” in this State, when a valid written contract or other written instrument has a clear meaning and contains the complete agreement or legal engagement of the parties, parol or other extrinsic evidence which tends to vary or contradict the terms of the writing is not admissible (Laskey v. Rubel Corp., 303 N. Y. 69; Fogelson v. Rackfay Constr. Co., 300 N. Y. 334; Mitchill v. Lath, 247 N. Y. 377; Thomas v. Scutt, 127 N. Y. 133). An exception is made when the object is to prove that a writing, apparently valid and complete on its face, was not to become effective unless and until the occurrence of an orally agreed upon condition precedent (Smith v. Dotterweich, 200 N. Y. 299). Admission of such evidence is permissible, however, not to vary or contradict the terms of the written instrument in contravention of the parol evidence rule, but to show that no contract ever came into existence. “ When the effect of the oral testimony is to establish the existence of a written contract, which it is designed to contradict or change by parol, then the spoken word must yield to the written compact.” (Smith v. Dotterweich, supra, p. 305.)


*418In the case before us the court below took it for granted, although there was no evidence on the subject, that the letter of the 9lh of February was in reply to a written communication, sent by the person who delivered the paper, which was still in the possession of the defendant. Probably this was so ; but that did not relieve the plaintiff from the necessity of proving what the defendant’s agreement was. If any part of the correspondence which constituted the agreement was in the hands of Greele, the proper course for the plaintiff was to call on him to produce it on the trial; and, if he refused, <mask> might have been given of its existence and contents. Stone was called as a witness for the plaintiff and could have stated whether the letter was in answer to a written communication or to a verbal message; and if to the former he could have proved the contents thereof. It was the duty of the plaintiff to produce this proof to sustain his case. As he neglected to do this he had no right to recover; and the motion for a nonsuit should have been granted.


A learned opinion on the legal question involved here, with somewhat similar facts, was written by Justice Rowland L. Davis, now of the Second Department, then of the Fourth Department, in Union Trust Co. v. Boardman ([Dec. 1925] 215 App. Div. 73, affd., 246 N. Y. 627). That action was for a judicial accounting and interpretation of portions of a trust agreement. Controversies had arisen between the beneficiaries of the trust instrument and they sought the court’s interpretation of the written language. At page 77 the court asked the question: “ May a court of equity grant reformation of the trust agreement between beneficiaries, after the donor’s death, on the theory that his intended plan of distribution was defeated by an alleged mistake in computation ” and that his real intention was that the parties should share equally? From evidence showing the relation of the parties, the paper upon which the donor made computations, the respondents claim to have shown conclusively that it was the intention of the donor that there should be equal division. The court assumed that, as far as is humanly possible to show, the proof was sufficient to justify a finding that the donor held all his grandnephews and grandnieces in equal affection and that he made a mistake in computation. The respondents succeeded at the trial in their claim that the written agreement may be reformed as between the beneficiaries and the donor’s definite language may be nullified and new provisions inserted to carry out the intent. Justice Davis, in deciding, said (p. 78): “ It is conceded that there is no authority in this State establishing a clear precedent for such a conclusion, but it is argued that the legal principle is well established in other jurisdictions and may properly be applied here.” The court continued: “ It seems to us a dangerous doctrine. Heretofore our courts have held in passing upon the written language used by a man disposing of his property to take effect after his death, that its jurisdiction extends only to the interpretation of ambiguous language in the instrument, or to a declaration of its invalidity. * * * Courts of equity have not assumed to exercise jurisdiction to make a *467new agreement or a new will for a party and to interject therein in the place of plain provisions, other provisions which the court may say the decedent had in his mind at some time hut which he mistakenly omitted.” (Italics mine.) As against the respondents’ contention, to make the change would be to redraft the instrument upon evidence which rests largely upon conjecture. The court again said (at p. 79): “ It is quite evident that if this be the true doctrine (the one supported by the respondent), relative to gifts, made either during the lifetime of the donor or by a trust agreement or by will, a wide and unexplored field will be open for claims and litigation respecting property thus given.” Again (at p. 80): “ We are reluctant to introduce a new, and as we view it, dangerous doctrine into the settled law of the State. We hold that a court has no power or jurisdiction to go behind the definite language of the agreement and substitute new terms for those written by the donor. ‘A will cannot be corrected because the testator misapprehended its effect; Nor as a general rule, is <mask> admissible to supply omissions, or to control or explain the intention, or vary the legal construction.’ (Arthur v. Arthur, 10 Barb. 9, 16.) The same rigid rule must be applied to a trust agreement disposing of the donor’s property very largely after his death.” (Matter of Evans, 135 Misc. 656; Matter of Bent, 142 id. 811; Matter of Walsh, 147 id. 103, 105; Matter of Skidmore, 148 id. 569, 581; Matter of Levy, 160 id. 394, 397.)


*648*Upori any other construction of the act, the inhabitants of the town, whose agents are compelled to accept the bond of indemnity, if offered, must often lose their remedy upon it against the surety, or be put to the inconvenience of actually advancing money for the maintenance of the bastard child; and in all cases where the infant is provided for by the ..overseers, by other means than the actual expenditure *649of money, all recourse to the surety on the bond of in- , ■” . y demmty for compensation, must be defeated, lo .. ... „ „ this bond, then, as a contract requiring positive proof of the actual expenditure of money in the support of the child, and in all cases excluding a subsequent adjudication of justices, settling the rate of compensation, or any <mask> of á reasonable allowance for establishing a right of recovery, would be to construe it most beneficially for the ease and benefit of the obligors, to the grievance, inconvenience and loss of the obligees, and the inhabitants of the town whom they represent as their trustees. I am not prepared thus to favor the wrong doer or his sureties, at the expense of those who are involuntarily drawn into liability by his misconduct. I think every fair intendment should be made in favor of the trustees of the town, and that they are entitled to a liberal construction of the act for the suppression of the mischief it intends to suppress, and the advancement and beneficial application of the remedies it provides for them.


When a tenant in common by agreement relinquishes the right to bring partition, he surrenders to the other tenants a valuable vested interest in his ownership of the property. The surrender of an interest in real property is required to be in writing under the Statute of Frauds (Real Property Law, § 242). In addition, the whole alleged agreement was made prior to the execution of the deed under which the parties held. All prior agreements relating to title and ownership are presumed to be merged in the written instrument. To establish the alleged agreement would require the reception of <mask> to vary the terms of the deed. This was rejected in Smith v. Smith (214 App. Div. 383); Casolo v. Nardella (275 App. Div. 502, 505, motion for leave to appeal denied, 300 N. Y. 549).


Under the unambiguous language of each of the Four Assignments, each assignment is effective immediately, and no assignment is contingent on any condition, including the condition that Mokaram or Choudhri purchase Latif's entire interest in ML Partnership and ML General. Although Mokaram testified at trial to an alleged oral condition under which Mokaram and Choudhri agreed that none of the assignments would be effective unless Mokaram purchased Latif's interest in ML Partnership, the Four Assignments contain no language imposing such a condition. Because this <mask> as to a prior or contemporaneous agreement to this condition contradicts the plain meaning of each of the Four Assignments, the law deems this evidence incompetent to change the unambiguous language of the *603Four Assignments. See White Oak Operating Co., LLC v. BLR Const. Cos., LLC, 362 S.W.3d 725, 734 (Tex. App.-Houston [14th Dist.] 2011, no pet.).


If the plaintiff had the power to overwrite the name of Pike with a contract implied by law, or recover against him as an original contractor or guarantor, then the amendment was unobjectionable, because it only expressed his obligation, and <mask> to sustain it, could not affect the interests of his estate, while it sustained the legal result predicated of his signature in the place mentioned. There is no distinction between a note and an agreement recognized. In the cases in 2 Hill and 2 Denio (supra), the rule was applied to both. They rest on the same principles, and should be governed by the same rule.


Defendants contend that the “no-reprisal” agreement is ambiguous because they did not intend it to prohibit them from charging and trying nonstrikers for conduct unbecoming a Union member for crossing the Union’s picket lines during *793the strike at Republic. During the trial this court refused to permit the defendants to introduce any <mask> or writings antedating said agreement to show this undisclosed intent.


There being a deficiency of personal estate to pay the legacies, it is urged that they constitute a charge upon the proceeds of the sale of the real estate, a part of which has been sold by the executors under the power contained in the will. This question is to be determined from the contents of the will, <mask> of intention being inadmissible. (Lupton vs. Lupton, 2 J. C. R., 623.) There are few points which have been more agitated from an early period, than that of charging the real estate with debts and legacies. Independent of statutory provisions, I think the present will contains enough to charge the real estate by implication, at Common Law, with the payment of the testator’s debts. The debts are directed to be paid in the first place, as soon after the testator’s death as may be convenient, provided that his real estate be not sold, unless it shall become absolutely necessary; and then, subsequently, the rest and residue of the estate, real and personal, is. devised and bequeathed, after the payment of debts, and the executory are clothed with a power of sale. (Harris vs. Ingledew, 3 P. W., 91; Kentish vs. Kentish, 3 B. C. R., 257, note; Shallcross vs. Finden, 3 Vesey, 739; Williams vs. Chitty, 3 Vesey, 545; Clifford vs. Lewis, 6 Madd., 33; Graves vs. Graves, 8 Simon, 55; 2 Russ. & My., 581; Ball vs. Harris, 8 Simon, 485; 1 Dru. & W, 430; 1 You. & Col., N. C., 290; 2 My. & K, 607.) As the personal estate was the primary fund for the payment of the debts and legacies, and the testator appears to have contemplated and charged the payment of his debts out of and upon his real estate, it renders the ground for a simi*475lar implication in regard to the legacies much stronger. In Hassel vs. Hassel, 2 Dick., 527, a gift of the residue of real and personal estate, “ not hereinbefore disposed off was held to charge the legacies previously bequeathed, on the real estate. In Brudenell vs. Boughton, 2 Atk., 268, the same was intimated by Lord Hardwicke to be the effect of a simple gift of the residue. In Bench vs. Biles, 4 Madd., 187, a devise and bequest of all the rest, residue and remainder of the real and personal estate, was decided to create a charge of the legacies on the real estate,—and the same point was also adjudged in Cole vs. Turner, 4 Russ., 376, and Mirehouse vs. Scaife, 2 My. & C., 695. (See 10 Simons, 393; 3 Russ., 343; Story's Eq., § 1246, &c.; 7 Paige, 421; 1 Penns., 96; 2 Binmey, 525; 6 Id., 395; 2 Dall., 131; 9 Beav., 150.) In the present case, the testator devises the residue of his estate, real and personal, “ not hereinbefore d/isposed off “ after” the payment of his debts. The debts being thus expressly mentioned in the residuary clause, it is manifest the words, “ all the rest and residue of my estate, real and personal, not hereinbefore disposed off refer to other previous dispositions. The whole estate, real and personal, is here thrown and blended into one fund; the term residue applies as much to the real as to the personal estate, and unless the legacies be considered as intended to be charged on the real estate, there is no previous disposition of the real estate. These expressions, taken in connection with the power of sale to the executors, the apparent expectation of the testator that his debts would have to be paid out of his realty, and consequently, that the legacies, if paid,must be realized out of the same fund, incline me to the conclusion, that it was his intention to charge the legacies on the real estate. This result is sustained by some of the cases I have cited, and though the question submitted to me is not free from doubt, yet, under all the circumstances, I am of opinion that the devise of the residue of the real estate, was designed to pass the realty subject to the pay*476ment of the legacies. The largest devisee is named executrix with other executors in the will, the legacies are given to relatives of the testator, and not to strangers ; and there is no circumstance wanting to incline the Court in favor of sustaining the charge against the realty, provided it can be done in harmony with established principles. My first impressions were against the legatees, hut an examination of the cases has convinced me, that the will contains sufficient indications of the testator’s intention, according to settled rules of construction, to impose the burden of the payment of the legacies upon the devisees of the residue of the real estate.


In Mann v. Mann (1 Johns. Ch. 231, 234), it was said: “ It is a well settled rule, that seems not to stand in need of much proof, or illustration, for it runs through all the books, t from Cheyney’s Case (5 Go. 68) down to this day, that <mask> cannot be admitted to supply or contradict, enlarge


It purports to have been made “for value received,” but in what form or to what amount is not expressed, and the question presented is whether the proof of the oral agreement under such circumstances, on an issue like the present, violates the elementary rule of evidence before referred to. The principle established by the authorities seems to be, that if no consideration be expressed in a written agreement, or if it *425purports to have been made on divers good considerations, that the true consideration may be proved aliunde (see the various cases on the subject collated in Sugden on Vendors [8th Am. ed), vol. 1, p. 238, note b, and see 6th ed., 3d vol., R. S., p. 672, sec. 124, and cases cited), and it is said by judge Huston in Bollinger v. Eckhert (16 Serg. & R., 424: “We have settled down in this: Whatever material to the contract was expressed and agreed to when the bargain was concluded and the article drawn may, if not expressed in the article, be proved by parol, unless it is expressed contrary in the writing.” Upon this principle <mask> of what passed at the execution of a deed was held admissible in Pennsylvania, to show that the conveyance, though nominally absolute, was in fact for the purpose of enabling the grantor to institute an ejectment in the name of the grantee in the circuit court of the United States (Ingham agt. Crary, 1 Penrose & Watts, [Penn)., 389). In declaring the law in our own state justice Cowen, in McCrea agt. Purmont (16 Wend., 460), after a review of many of the leading authorities in England and in the United States, says in conclusion: “ Looking at the strong and overwhelming balance of authority, as collected from the decisions of the American courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, except for the purpose of giving effect to the operative words of conveyance. To that end, and that alone, it is conclusive. Such effect, I have no doubt, has long been ascribed to it by conveyancers and dealers in real estate. It is a construction that violates no rule of law, but harmonizes with well-settled . principles, and should be steadily maintained and applied whenever the ends of substantial justice may require it” (McCrea agt. Purmont, supra). This acknowledgment of consideration estops the grantor from alleging that the deed was executed without consideration, prevents a resulting trust in him and forever debars him from denying the deed for the uses therein mentioned; but for every other purpose it is open to explana*426tion, and may be varied by parol proof (see cases cited in Sugden on Vendors [8th Am. ed.], p. 238, note b). There seems to be nothing in the rule referred to, which conflicts with the plaintiff’s right to prove the oral understanding upon which the assignment was executed and delivered. He did not prove that the written assignment made by him to Fullerton was executed without consideration, but was allowed to prove what the consideration was as matter of fact. Ho trust, by implication or otherwise, resulted from the assignment, because it was drawn in form absolute on its face, so as to enable Fullerton to prosecute in his own name an action upon the claims assigned; nor did the verbal understanding impress any trust upon the assignment in Henderson’s favor, because all his interest in the claim, as against Chapman, irrevocably passed by that assignment, and the verbal understanding did not operate as a reservation of any part of it. It created an inchoate right of action, however, in Henderson’s favor, as against Fullerton, which matured and became complete upon the collection of the judgment. The distinction here pointed out is observable in the authorities. Henderson does not impeach the assignment, and does not deny the validity-of the transfer. He merely seeks to enforce, as against Fullerton, the agreement which was the consideration for the transfer, which agreement became efficacious when the transfer produced its results.


Once the facts are clearly stated it is not too difficult to apply the controlling principles to them. The <mask> rule upon which third-party defendant relies is a rule which precludes evidence of conversations or negotiations by the parties to a written contract when such conversations or negotiations occur either prior to, or at the time of, the execution of the written contract when such conversations would contradict, vary, add to or subtract from its terms. (Richardson on Evidence [7th ed.], § 420; Thomas v. Scutt, 127 N. Y. 133.) Accordingly, a parol contract made after the written contract does not fall within the prohibition of the rule. Moreover there is no prohibition (in the absence of statutory provision to the contrary) against modifying a written contract by a subsequent oral agreement (17 C. J. S., Contracts, § 377, p. 865). “ Those who make a contract, may unmake it. * * * Whenever *954two men contract, no limitation self-imposed can destroy their power to contract again ”. (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 387-388.) “An existing contract may be modified later by subsequent agreement, oral or written ” (Martin v. Peyton, 246 N. Y. 213, 218).


The court permitted testimony to explain the circumstances, reasons and understandings of the parties concerning the two signatures of the individual defendant. Such evidence is not barred by the <mask> rule. It does not vary the terms of the parties’ written contract. Parol evidence is admissible to show the facts pertinent at execution from which may be gleaned the intention of the parties as to the reason and legal effect of the individual defendant’s second signature. (Esselstyn v. McDonald, 98 App. Div. 197; Electric Carriage Call & Specialty Co. v. Herman, 67 Misc. 394; Schonberger v. Culbertson, 231 App. Div. 257; New Amsterdam Cas. Co. v. Mobinco Brokerage Co., 219 App. Div. 486.)


“ This case seems to fall directly within the principle ‘ that <mask> of an oral agreement made at the time of the drawing, making or indorsing of a bill or note, cannot be permitted to vary, qualify or contradict, to add or to subtract from the absolute terms of the written contract. (Specht v. Howard, 16 Wall. 564; Forsyth v. Kimball, 91 U. S. 291; Brown v. Wiley, 61 U. S. 442; Brown v. Spafford, 95 U. S. 474; Read v. Bank of Attica, 124 N. Y. 671.) ” (Jamestown Business College Association v. Allen, 172 N. Y. 291.)


IIG does not contest the existence of integrated agreements. It argues instead that an exception to the <mask> rule permits the introduction of extrinsic evidence to establish fraud. The fraud exception to the parol evidence rule is codified at section 1856, subdivision (g) : "This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud."


There is nothing in Fogelson v. Rackfay Constr. Co. (300 N. Y. 334) to cause me to decide differently. In that case an action was brought by tenants to enjoin a landlord from terminating bus service which had been provided for a long period of time in accordance with an alleged oral agreement. The court refused to grant the injunction, holding that the lease embodied the entire agreement between the parties and could not be varied by <mask> of supplementary agreements, and that the continuation of the voluntary furnishing of bus service could not be compelled in the future, although it had been provided by the landlord for many years. The rent commission had not been called upon to intervene in the Fogelson controversy. The case now before me is quite different. Here the administrative agency established by the Legislature to ascertain the facts, and to apply the statutory controls to the facts as found, has done just that. Since I cannot say that the order attacked by the petitioners is arbitrary, capricious, unreasonable or unlawful, I am not empowered to *977reverse the determination (Matter of Motta v. Temporary State Housing Rent Comm., 202 Misc. 341; Matter of Brown v. McGoldrick, 203 Misc. 1027; Matter of Mayfair-York Corp. v. McGoldrick, 206 Misc. 925, affd. 285 App. Div. 945; Matter of Servedio v. Abrams, 208 Misc. 397; Matter of Feinberg v. Abrams, 208 Misc. 568).