
    (53 Misc. Rep. 373)
    BOWMAN v. POPPENBERG et al.
    (Supreme Court, Special Term, Erie County.
    February, 1907.)
    1. Evidence—Written Contracts—Parol Evidence.
    Where supposed duplicate copies of one agreement differ as to certain particulars, parol evidence is admissible to show which of the two papers embodies the real agreement.
    2. Injunction—Action at Law—Other Adequate Remedy.
    Complainant, having been sued on a piano sale contract on which it was claimed there was due a balance for interest, brought a suit in equity to reform defendant’s duplicate of the contract, alleging that, when it was made, complainant objected to the payment of interest, whereupon the interest clause was stricken from his duplicate, but not from the one which subsequently came into defendant’s hands, and prayed that the latter be reformed, and that defendant’s suit thereon he enjoined. Held, that complainant had an adequate remedy by defense in the former suit on the ground that defendant’s duplicate did not express the true agreement of the parties.
    Action by John E. Bowman against Gustave H; Poppenberg and another. On motion to dissolve a temporary injunction on the original papers. Granted.
    Dudley, Gray & Noonan, for motion.
    King & Leggett, opposed.
   WHEELER, J.

This action is brought for the ostensible purpose of reforming an alleged contract, and restraining the prosecution of an action based upon it in the City Court of Niagara Ealls. The complaint and affidavits on which this injunction was granted disclose that the plaintiff purchased of the defendants a piano, and that the purchase price was $300, to be paid for in monthly installments, without interest. This agreement the parties undertook to evidence by a writing executed in duplicate upon printed forms furnished by the defendants. The printed form provided for the payment of interest, but, on presentation to the plaintiff for his signature, he objected to the interest clause as not expressing the agreement, and accordingly a pencil was drawn through that clause, and the duplicate agreement with this change given to him. It is alleged the other copy or duplicate of the written agreement by neglect or oversight was riot changed, and is now in the possession of the defendant Poppenberg. The plaintiff alleges he has paid the $300 called for by the agreement, and by virtue of that payment the piano in question has become his absolute property. It is alleged, on the other hand, that the defendant, Poppenberg claims that by virtue of the agreement in his possession some $50 of interest remains unpaid, and by the terms of the agreement the piano is still his property, and that he has brought an action in the City Court of Niagara Falls to recover the possession of the piano. This action is therefore brought to reform the alleged agreement, and for a judgment declaring the plaintiff to be the owner of the piano, and to restrain the prosecution of the replevin action in the City Court. It is prosecuted on the theory that the plaintiff has no adequate remedy to protect his right in the action pending in the City Court of Niagara Ealls, as that court has no equity jurisdiction. The defendant, on the other hand, contends that all the questions raised can be litigated properly in the City Court, and that, as the plaintiff has an adequate defense to the action in that court, the injunction in this action ought not to be continued. In this view this court concurs.

The question at issue, as disclosed by the motion papers, is simply whether or not the purchase price for the piano was to be paid with or without interest, and that question turns upon whether the duplicate copy of the agreement in the hands of the plaintiff or that in the hands of the defendant is the real agreement of the parties. In cases like the one now under consideration where supposed duplicate copies of one agreement differ as to some particulars, it is held that parol evidence is competent for the purpose of showing which of the two papers embodies the real agreement of the parties. McNulty v. Prentice, 25 Barb. 204; Hill v. Miller, 76 N. Y. 32. It does not appear to be a question of reforming an instrument, but resolves itself into one of identification of the real and actual agreement of the parties. Consequently there is no need for the interposition of a court of equity, but the City Court has ample power to inquire into and decide whether the instrument in tire" hands of the plaintiff or that in the hands of the defendant was intended to be the agreement of the parties. There appears, therefore, to be no good reason why the differences of the parties should not be litigated and determined in the City Court. It is a well-recognized rule that suits in equity to restrain the prosecution of actions at law between the same parties will not be entertained where the questions in dispute can be disposed of in the action at law. Kelly v. Christal, 81 N. Y. 619; Savage v. Allen, 54 N. Y. 458.

These considerations lead this court to the decision that the preliminary injunction should be vacated.

Let such an order be entered, with $10, costs of motion.  