
    The National Cash Register Co., Respondent, v. Leon C. Riggs, Appellant.
    (Supreme Court, Appellate Term,
    February, 1898.)
    
      %. Action on a written contract — General denial — Parol evidence that the contract was not. made. >
    Where-the complaint, in an action upona contract of conditional sale, alleges that the defendant executed á written contract annexed to .the complaint, partly written and partly printed, and containing a provision for the payment of a part' of the purchase price in notes, and the answer besides denying these allegations, alleges that it was agreed •that no notes should be given and also states that the defendant signed in blank, á printed paper similar to the contract set forth, in reliance upon the understanding that no notes were to be given, the defendant may show by parol that the provision as to the notes was not in the contract when he signed it; and the-admission of such evidence - does not violate the rule excluding parol evidence which tends to contradict or vary the terms of a written instrument. .
    £}. District courts of Mew York city — Amendment of pleadings.
    A justice of a District Court of the city of New York has power, at any time before or during a trial, to amend the pleadings, if substantial justice will be promoted thereby..
    Appeal from a judgment of the Sixth Judicial District Court $n favor of plaintiff.
    Clifford H. Gest (J. Park Henderson, of counsel), for appellant.
    Perkins & Butler, for respondent.
   Gildersleeve, J.

This is an appeal from a judgment of the Sixth Judicial District Court in favoi* of the plaintiff. The action-is on a contract of conditional sale of a National cash register by the plaintiff to the defendant. The complaint, in paragraph II,alleges that “ on or about the 19th day of April, 1897, plaintiff and defendant entered into a contract in uniting, a copy of which,marked A/ is hereto annexed and made a part of this complaint.” The said, exhibit “ A ” contains a provision that part of the price for the cash register should be paid by notes of $10 each, payable-monthly. The answer, in paragraph II, “ denies each and every allegation contained in the second paragraph of the complaint,”' and, in paragraph VII, the answer alleges that it was expressly agreed, at the time that the above contract was entered into, that no notes were to be given by the defendant, and-the defendant, acting upon said agreement, signed in blank a printed paper in' substance similar to plaintiff’s exhibit ‘ A,’ on the understanding,, in furtherance of the agreement and representations made by the plaintiff’s agent, that no notes were to be executed by defendant.,r

Dpon the trial the plaintiff put in evidence the contract, which was partly printed and partly written in pencil, and parts of the printed matter were erased in pencil. It contained the provision as to the notes, as. set forth in the copy attached to the complaint, marked “A,” as above stated. Plaintiff’s agent testified that the contract was signed in his presence by the defendant, and in answer to the question “Was that all filled out as it is? ” replied “ Tes, sir.” On cross-examination, he was asked, “ Is it not a fact that when Mr. Riggs signed that contract, all reference to any notes was stricken out? ” This was objected to, and the court adjourned the trial, for about two weeks, to give defendant’s counsel an opportunity to submit a brief on the admissibility of this' evidence. On the return day plaintiff rested, and defendant asked" leave to amend the answer by setting up an allegation to the effect that, after the contract had been signed, plaintiff had fraudulently' altered and modified the same by inserting the provision with regard to notes, above referred to. The motion was denied on the ground that defendant was guilty of laches in waiting until the close of the plaintiff’s case before making his motion. . The defendant, thereupon, went on with his defense, and was asked the following questions by his counsel, viz.: “ I will ask you whether you signed that instrument, as-it appears there? ” Also, “ O’alling your attention again to that contract, you will notice about a little over half way down that there is a statement in the contract, $25 upon delivery, and notes for $10, payable monthly. I ask yon if that was in' the contract signed by yon or not? ” These questions were ruled out by the trial judge. It is our opinion that this ruling was erroneous. Under the pleadings, as then before the court, the defendant was at liberty to show that the contract, put in evidence by the plaintiff, was. not the contract he had executed. Boomer v. Koon, 6 Hun, 646. Under the denial of the allegation of the complaint; setting forth the contract, the defendant had a right to prove anything that would show the allegation untrue. Boomer v. Koon, 6 Hun, 646; also Wheeler v. Billings, 38 N- Y. 264-265. Under this denial and the allegations in paragraph Yll of the answer, above set forth, it was competent for the defendant to show that said provision as to notes was not in the contract when he signed it. See Boomer v. Koon, 6 Hun, 645; Schwarz v. Oppold, 74 N. Y. 307. We do not see that the doctrine, here ' laid down, is in any way in conflict with' the well- established rule that “ Fraud is never presumed; and in order to entitle a party to relief, oh that ground, it is essential that fraud be distinctly alleged in the pleadings, so that it may be put in issue, and evidence thereof given.” 9 Ency. of Plead. & Prac. 684. The plaintiff puts in evidence a certain contract, a copy of which was set forth in the complaint, and its agent testifies that it was in its present form when defendant signed it, thus in a measure himself opening the door to. the introduction of the excluded testimony. . The defendant wishes to testify that one of the provisions was not in it when he signed it. His answer denies, the contract as set forth in the com■plaint, and alleges a distinct agreement that there were to be.no notes given, and that the defendant, acting on such understanding, and the representations of the plaintiff’s agent, signed a contract in blank. . It seems to us that the excluded questions were proper. The plaintiff’s contention that the attempt, on the part of the defendant, to introduce this line of testimony was in violation of-the rule that “parol, contemporaneous evidence is-inadmissible to contradict or vary the terms of a valid written instrument,’’ is untenable. The defendant was simply seeking to show that the contract, put in evidence, was not the contract he had executed, inasmuch as the contract signed by him contained no reference to any notes. Boomer v. Koon, supra.

In Schwarz v. Oppold, supra, the complaint set forth a note payable on demand with interest. The answer of the maker contained a general denial. The note put in evidence purported to be payable with interest, as alleged in the complaint. The Court of Appeals held that “ It was clearly competent for the defendant under his general denial, to controvert this proof by showing that the note had been altered since its execution by adding the words, * with interest.’ ”

' In Boomer v. Koon, 6 Hun, 645, the complaint alleged in the usual form the making and delivery of the note sued upon, and described the note according to its terms; the answer denied the making and delivery of the note, as alleged in the complaint. At the trial, the plaintiff produced the note described in the complaint, and proved the defendant’s signature thereto. The defendant then offered to prove that said note had, after its execution and delivery, been altered by adding the words “ with interest.” The objection to the introduction of such testimony was sustained, and the General Term held this ruling to be error. The court said, “ The proof that the note, produced on the trial, had been altered in a material part, was clearly proof that it was not his note; that he did not .make and deliver such note.” And the court held that defendant should not have been precluded from such defense because he had omitted to set it up in Ms answer.

Having reached the conclusion that the judgment should be reversed for the error above set forth, it becomes unnecessary to discuss the propriety of the denial of the motion to amend the answer. We may say, however, that a justice of the District Court has ample power, at any time .before trial or during the trial, to amend the pleadings, if substantial justice will be promoted thereby; and it is not wholly witMri the discretion of the justice to refuse the proposed amendment, but srntors have a right to insist upon the exercise of this power in a proper case. See Vaughn v. Lego, 17 N. Y. St. Repr. 279; Code, § 2944, made applicable to District Courts by section 1347 of Consolidation Act.

For the reason above stated the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Beekmah,. P. J., and Giegeeich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  