Senter v. Golden
| Decision Date | 28 June 1956 |
| Citation | 154 N.Y.S.2d 731 |
| Parties | Arthur SENTER and Minnie Senter, Respondents, v. Abe GOLDEN and Abe Selvin, Appellants. |
| Court | New York Supreme Court — Appellate Term |
Tannenbaum & Goldweber, Max Goldweber, Jamaica, for appellants
Sydney M. Freed, New York City, for respondents.
Before PETTE, HART and DI GIOVANNA, JJ.
Judgment reversed upon the law and the facts and a new trial granted with $30 costs to the appellants to abide the event.
Except for the twenty-four items set forth in the schedule attached to the escrow agreement executed by the parties contemporaneously with the closing of title, but before the delivery of the deed, the contract, dated June 8, 1954, for the purchase of the property by the plaintiffs was merged in the conveyance, both pursuant to the provisions of paragraph '(24)' of that contract and by operation of law. Disbrow v. Harris, 122 N.Y. 362, 25 N.E. 356; Murdock v. Gilchrist, 52 N.Y. 242; Lambert v. Krum, 121 Misc. 170, 200 N.Y.S. 452. The escrow agreement, to the extent of said twenty-four items of work uncompleted and materials not installed at the time of the closing, was a collateral undertaking which, by its very nature, shows the intention that these items should not be merged in the deed and were, therefore, not extinguished by its acceptance. Id.; Siebros Finance Corporation v. Kirman, 232 App.Div. 375, 377, 249 N.Y.S. 497, 499. Accordingly, it was error for the trial court to receive testimony of items not included in the twenty-four listed in the escrow agreement and to make an allowance therefor in the damages awarded to the plaintiffs.
In addition, while we agree with the finding implicit in the determination below that the escrow agreement was ambiguous and, consequently oral testimony was admissible for the purpose of explaining the ambiguity appearing on the face of the writing, Newhall v. Appleton, 114 N.Y. 140, 21 N.E. 105, 3 L.R.A. 859; Goldstein v. Frances Emblems, 269 App.Div. 345, 347, 55 N.Y.S.2d 740, 741, the reconstructed record before us, without the actual testimony of the witnesses, is in our view insufficient to sustain the interpretation placed upon the agreement by the trial court. Moreover, there appears to have been no testimony adduced at the trial to explain the ambiguity appearing in the first paragraph of subdivision 3 of the escrow agreement, wherein reimbursement from the escrow funds was provided for the 'work' embraced in the twenty-four items; yet the agreement recited that it was made 'To insure the installation and completion of the work and materials set forth in the attached schedule.' (Emphasis...
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