O'Connell v. Averell , 293 N.Y.S. 265 ( 1937 )

In an action upon a purchase-money bond, judgment for the plaintiff affirmed, with costs. We have examined all of the proof adduced in this ease and are of opinion that the appellant’s defense to the effect that the bond was not intended to be an obligation upon him was not sustained by the requisite, clear and convincing proof. His claim that he executed the formal contract providing for the making of a bond and mortgage by him, despite an understanding to the contrary, on the ground that there was not space enough in the contract to make it conform to the agreement and that he executed the bond although it was to have no effect at all, in the light of the circumstances and the opposing proof, does not warrant reformation. Lazansky, P. J., Hagarty, Carswell and Davis, JJ., concur; Close, J., dissents, with the following memorandum: I dissent and vote for reversal and a new trial. The trial court committed error in striking from the record defendant’s Exhibit B and the testimony pertaining thereto. The greater weight of the evidence establishes that the letter, Exhibit B, is contemporaneous with the contract; defendant’s Exhibit C is a part thereof, and should be so construed. It follows that the agreement between the parties was that the defendant was not to become personally liable upon the bond in suit.