
    Jacob Winter and Louis Kershefsky, Appellants, v. Hyman Friedman, Respondent.
    Second Department,
    March 2, 1906.
    Evidence — when oral contract for sale of lands not merged in written ■ receipt for deposit - when parol evidence of oral contract admissible. ■
    In an action by the vendee of lands to recover a deposit paid under a parol ^agreement of sale, the fact that the vendor has executed a written receipt for . the payment setting forth part of the contract but not all of it, and contemplating a written contract in the future, does not make parol evidence inadmissible to show the -original oral contract, for the same is not merged , in such • incomplete writing-. - -
    - Appeal 'by the plaintiffs, Jacob Winter and anothfer, from a judgment of the MnnicipalvCourt of the city of Hew York, borough" of Brooklyn, in favor of the defendant,-entered in' the office of the clerk of said court on the 3d day of -February, 1905, dismissing the complaint upon the merits. - - ■
    
      Benjamin Frindel, for the appellants.
    
      Harry Zirn, for the respondent.
   Rich, J.:

On the 4th day of August, 1904, the parties in this action entered into an oral agreement, the effect of which was that the plaintiffs agreed to purchase from the defendant' certain premises in the borough of Brooklyn. Plaintiffs deposited with the defendant the sum of fifty dollars on account of said agreement, whereupon the defendant executed and delivered to them a writing as follows:

“ Brooklyn, E. Y., Aug. 4 / 04. ”
“ Received from Messrs. Winter and Kersliefskey Fifty Dollars deposit on premises Eo. 134 Boerum St. Bklyn, E. Y. Price of property Six Thousand Dollars (6000). Subject to a first mortgage of ($2600) which is to run for 4 years a second mortgage of ($1625) payable One Hundred Twenty-five Dollars every six months with interest at the rate of G%. Á 3rd mortgage shall be taken by tlie owner which shall be Seven Hundred Seventy-five Dollars to run for four years payable Fifty Dollars every six months with interest at 6% Contract to be drawn Monday evening August 8,1904, at the office of Mr. Zirn Eo. 14 Graham- Ave. City. Two sHundred and Fifty Dollars to be paid at the drawing of contract. Seven Hundred Dollars shall be paid at the closing of title.
“H. FRIEDMAE.”

The parties met at" the time and place named in the instrument and a disagreement arose as to what the contract to be executed should contain. The plaintiffs insisted that the defendant had agreed to convey the property to them free, from tenement-house violations and asked that a provision to that effect be inserted in the contract. The defendant refused to assent to this and the negotiations ended. The plaintiffs thereupon brought this action to recover the sum deposited. The court upon the trial refused to receive, any evidence of the oral agreement or of the conversation between the parties prior to the execution of the above writing, which was held to constitute the contract between the parties in which the oral agreement was. merged.

It is evident that the paper was executed and delivered as a receipt; it is so' designated in the pleadings. I 'do not think it was intended as a contract. It clearly appears from the evidence that it does not contain all of the agreement then entered into, and it provides in terms for drawing a formal contract. It has long been held that when a written instrument is executed as evidence of a part performance of an oral contract, and as incident thereto, there is no merger; and the rule prohibiting parol evidence, the effect of which is to vary or change a written agreement, does not apply' where, the original contract was verbal, and the writing was only executed as'a part performance of an entire oral agreement. (Juilliard v. Chaffee, 92 N. Y. 529, 535; Eighmie v. Taylor, 98 id. 288.) I think evidence of the parol -agreement was competent, and its exclusion by the’trial justice was such an error as' to call for a reversal' of'this judgment.'

The judgmeht should be reversed and a new ■ trial granted, costs to abide the event.

Hirsohberg, P. J., Woodward, Jenks and Miller, JJ., concurred. .

Judgment of the Municipal Court-reversed and new trial ordered, costs to abide the event.  