
    WIRTH et al. v. KAHLENBERG.
    (City Court of New York, General Term.
    March 3, 1900.)
    Contracts—Intention op Parties—Ambiguous Expressions—Trial.
    . Where uncertain and ambiguous expressions were used in a contract, and the real meaning and intention of the parties were not clearly expressed, it was error for the court not to submit it to the jury for determination from all the surrounding facts and circumstances.
    Appeal from trial term.
    Action by William Wirth and another against Franz Kahlenberg. Judgment for defendant, and plaintiffs appeal.
    Reversed.
    Argued before FITZSDIONS, C. J., and COKLAK, J.
    Davis & Kaufman, for appellants.
    Isaac Marks, for respondent.
   PER OURIAM.

We think that the trial justice erred in his construction of the contract made between the parties. Even the testimony of defendant proves the justness of this conclusion, because he testifies that, when said contract was made, the excavation for the foundation wall to be erected on the opposite side of the plaintiffs’ lot was completed. Plaintiffs’ testimony was that not only was the excavation made, but the foundation wall was partially built, and run down to the depth of 10 or 11 feet. At least, we think it was the duty of the trial justice to allow the jury to determine, as a question of fact, what was the real meaning and intention of the contracting parties in making such contract. In view of the uncertain and ambiguous expressions employed therein, we believe that the court should not have interpreted the contract, but should have left that function to the jury, and let them determine and define the intention of the parties thereto, looking to all the surrounding facts, circumstances, and pre-existing relations between the parties, and in that way determine their intention and meaning in entering into the same.

Judgment reversed, and a new trial is ordered, with costs to appellants to abide event.  