
    Morris Lefkowitz et al., Appellants, v. Merritt, Chapman & Scott Corp., Respondent.
   Reynolds, J.

Appeal from a judgment of the Supreme Court, Sullivan County, dismissing appellants’ complaint and granting judgment for respondent at the close of appellants’ case. Involved is a contract which provides in pertinent part as follows: “Merritt-Chapman & Scott in return for permission to deposit waste material on the above described property agrees to build-up and grade an Area at least Three Hundred Feet by Four Hundred Feet on the Bast Side of the newly constructed Route 17. This area is to be drained and to be left in such a condition as to be suitable for a Baseball Field development. This area is to be completed by approximately June 25th, 1959; the remaning waste area, to be left reasonably level and smooth and properly drained.” Appellants’ complaint alleges: “ 12. That the defendant has breached said contract by failing to do all the work called for in said contract; in failing to properly grade, cover with top soil and leave an area 300 x 400 ft. in such condition as to be suitable for a baseball field development and in failing to leave the remaining area reasonably level and smooth, and in leavng the area in such dangerous condition that a fence is necessary along a portion thereof.” The court below properly excluded paroi evidence which would vary respondent’s obligation with respect to the preparation of the baseball field from that set out in the written agreement. However, it was error to also exclude testimony that the area on which waste material had been deposited outside the area for the baseball field had not been reasonably leveled and drained. The contract specifically required this and if there is proof that it has not been accomplished appellants would be entitled to some recovery. Judgment reversed, on the law and the facts, and a new trial ordered, with costs to abide the event. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.  