
    The German Exchange Bank, Appellant, v. Marcus Schnitzer, Respondent.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Evidence — Parol evidence — The general rule and its applications — Attaching conditions'—The general rule.
    Parol evidence that a promissory note was given upon the express condition that it should never be sued upon if defendant should not be able • to pay it, though he agreed to pay interest thereon, tends to vary the obligation of a written instrument, and constitutes a condition subsequent, and is inadmissible.
    Appeal by plaintiff from a judgment of the City Court of the city of Hew York in favor of the defendant, dismissing the complaint and directing a verdict for the defendant.
    Steiner & Petersen (Henry A. Petersen and Joseph H. Kohan, of counsel), for appellant.
    J. Fred Alsgood (A. H. Montegriffo, Jr., of counsel), for respondent.
   Bijub, J.

Plaintiff sues on two promissory notes. Over the objection that it was oral evidence tending to vary a written contract, defendant testified that these notes were given after his discharge in bankruptcy, in which an indebtedness to the plaintiff of a greater amount had been discharged, and that at the time of the delivery of these notes they were given upon the express condition. that they should never be sued upon if defendant should not be able to pay them, though defendant agreed to pay interest thereon.

While oral evidence to show a lack of consideration or that notes were delivered on condition that they were not to become valid except in a certain contingency is admissible, oral evidence is not admissible to vary the obligation of an instrument, complete on its face, and purporting to be an obligation.

The agreement testified to constitutes a condition subsequent and not a condition precedent, and, therefore, is not admissible if not in writing. Jamestown Business College Assn. v. Allen, 172 N. Y. 291, 296; Ryan v. Sullivan, 128 N. Y. Supp. 632, 635.

As the discharge in bankruptcy did not satisfy the debt, the subsequent promise to pay is valid, being based upon the continuing moral obligation to pay. Dusenbury v. Hoyt, 53 N. Y. 522.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Guy, JJ., concur.

Judgment reversed.  