
    H. Koehler & Company, Appellant, v. John Duggan, Respondent.
    (Supreme Court, Appellate Term,
    December, 1905.)
    Equity — Equitable defenses in actions at law—Defense held not equitable.
    Evidence — Parol evidence — Enlarging or restricting liability — Admissible to show writing not intended to have efficacy as a contract.
    In an action for a deficiency upon the foreclosure of a chattel mortgage of saloon fixtures, the defense that defendant assumed the apparent relation of mortgagor and conducted the saloon solely for the benefit of plaintiff and that it was understood the writing was to have no efficacy as a contract is not of an equitable nature and the Municipal Court has jurisdiction; and evidence in support of such defense does not offend the rule which excludes parol proof to vary the terms of a written contract.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of blew York sixth district, borough of Manhattan.
    Jerome H. Koehler, for appellant.
    George G. Freer, for respondent.
   Bischoff, J.

The plaintiff, a brewing concern, sued the defendant, formerly employed by it as a truckman, for a deficiency upon foreclosure of a chattel mortgage of saloon fixtures; and the defense was that the defendant assumed the apparent relation of mortgagor, and conducted the saloon, solely for the benefit of the plaintiff, because of its inability to find any person willing to keep the place open in view of the rough character of the neighborhood, and that it was understood by the parties that the writing was to have no efficacy as a contract.

From a judgment for the defendant, rendered upon evidence sufficient to support a favorable finding of the facts thus set up as a defense, the plaintiff has appealed; and it is contended that the defense was not available, because of an equitable nature, and so without the jurisdiction of the Municipal Court, and that the defendant’s testimony was erroneously received, over objection, upon the ground that it tended to vary the written contract embodied in the chattel mortgage.

Keither point is well taken. Evidence which goes to the intention of the parties to make any contract at all, when executing a writing purporting to be a contract, does not offend the rule which excludes parol proof to vary the terms of an actual contract (Brown Farol Evi., § 33 and cases cited) ; nor does such a defense call for the exercise of equitable jurisdiction by the conrt, since the inquiry simply relates to the legal effect of the writing, upon the facts, and is of cognizance as a common law defense, not substantially different in character from a claim that the instrument had been given up. Grierson v. Mason, 60 N. Y. 394.

The judgment is, therefore, affirmed with costs.

Scott and- MacLean, JJ., concur.

Judgment affirmed, with costs.  