paroi evidence rule in New York

1983In addition to the existence of questions of fact, Special Term relied upon the rule of Folinsbee v Sawyer ( 157 NY 196, 199 ), to prevent Ertinger, a nonparty to the merger agreement, from invoking the paroi evidence rule to bar respondents’ proofs.

1983Although it is sometimes broadly observed that the paroi evidence rule has no application to any except parties to the instrument (see, e.g., Robert v. United States Shipping Bd. Emergency Fleet Corp., 240 N. Y. 474, 478 ; Folinsbee v. Sawyer, 157 N. Y. 196, 198-199 ), it is clear that in the case of a fully integrated agreement, where paroi evidence is offered to vary its terms, the rule operates to protect all whose rights depend upon the instrument even though they were not parties to it”.

1983Co., 300 NY 334, 337-338 ; Mitchill v Lath, 247 NY 377, 379-380 ; see, generally, Richardson, Evidence [10th ed], §§ 601-634).

1973Co. ( 300 N. Y. 334 ) was not involved, but rather the use of another part of the same parcel of property, many cases supported the propriety of proving an easement by implication, citing Phillips v. West Rockaway Land Co. ( 226 N. Y. 507 , supra) and Hofmann v. Hofmann ( 172 Misc. 378 , affd. 259 App. Div. 820 , mod. 283 N. Y. 730 ).

2000Corp. v Wal-Mart Stores, 89 NY2d 594, 600 ).

1992Indus., 96 AD2d 932 [2d Dept 1983].) Even if the evidence of Lebovits’ authority to bind his co-owners was as uncontroverted as respondents allege, the paroi evidence rule would render such proof inadmissible.

1989Further, the paroi evidence rule precludes consideration of the alleged oral representations made by defendant’s attorney at the closing (see, Braten v Bankers Trust Co., 60 NY2d 155 , rearg denied 61 NY2d 670 ; see also, Marine Midland Bank v Simpson Edson, Inc., 120 AD2d 709, 711 ).

1986Corp. v Acme Quilting Co., 46 NY2d 211, 219 ).

1983(See West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540 ; Leitman v Baldwin, 57 AD2d 944 .) The rule urged by appellants, however, has no application to an incomplete contract which falls within one of the limited exceptions to the paroi evidence rule.

1983Although it is sometimes broadly observed that the paroi evidence rule has no application to any except parties to the instrument (see, e.g., Robert v. United States Shipping Bd. Emergency Fleet Corp., 240 N. Y. 474, 478 ; Folinsbee v. Sawyer, 157 N. Y. 196, 198-199 ), it is clear that in the case of a fully integrated agreement, where paroi evidence is offered to vary its terms, the rule operates to protect all whose rights depend upon the instrument even though they were not parties to it”.

1983The exception to the Folinsbee rule stated by the Court of Appeals in Oxford Commercial Corp. v Landau ( 12 NY2d 362 ), relied upon by the dissent, applies, in the language of the Court of Appeals, to fully integrated agreements.

1983(See West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540 ; Leitman v Baldwin, 57 AD2d 944 .) The rule urged by appellants, however, has no application to an incomplete contract which falls within one of the limited exceptions to the paroi evidence rule.

1983Proof to vary or modify the terms of the agreement is not admissible under the paroi evidence rule, which excludes evidence of all prior or contemporaneous negotiations or agreements offered to contradict or modify the terms of a written agreement (Marine Midland Bank-Southern v Thurlow, 53 NY2d 381, 387 ; Fogelson v Rackfay Constr.

1980In such a case, it is clear, evidence of the assertedly fraudulent oral misrepresentation may be introduced to avoid the agreement.” (Saba v Delman, 3 NY2d 155, 161 , supra.) Upon like reasoning, New York law has rejected the argument that a written provision of disclaimer as to representations not incorporated in the written agreement, sometimes called a merger clause, forecloses evidence of "antecedent fraud.” As the Court of Appeals declared in Bridger v Goldsmith ( 143 NY 424, 428 ): "[TJhere is no authority that we are required to follow in support of the proposition that a party who has

1980(See 223 App Div 623 .) Recent vacillations of the appellate courts on a requirement to perform in a workmanlike manner seem to range from a duty borne out of (1) the concept of negligence in performance and (2) a breach of contract by nonperformance of what was contracted to be done.

1980In such a case, it is clear, evidence of the assertedly fraudulent oral misrepresentation may be introduced to avoid the agreement.” (Saba v Delman, 3 NY2d 155, 161 , supra.) Upon like reasoning, New York law has rejected the argument that a written provision of disclaimer as to representations not incorporated in the written agreement, sometimes called a merger clause, forecloses evidence of "antecedent fraud.” As the Court of Appeals declared in Bridger v Goldsmith ( 143 NY 424, 428 ): "[TJhere is no authority that we are required to follow in support of the proposition that a party who has

1973Real Pístate Corp., 26 ,N Y 2d 77; Sabo v. Reiman, 3 N Y 2d 155; Adams v. Gillig, 199 N. Y. 314 ; 4 Williston, Contracts [3d ed.], § 631, pp. 948-949).

1973An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the paroi evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing, (Smith v. Community Synagogue, 309 N. Y. 733 ; Lemkin v. Gulde, 16 Misc 2d 1003 , affd. 8 A D 2d 944; Feigen v. Green Harbour Beach Club, 25 Misc 2d 101 ; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672 .) Mr. Justice Christ’s decision in Lemkin v. Guide (supra) establishes that the restriction claime

1973An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the paroi evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing, (Smith v. Community Synagogue, 309 N. Y. 733 ; Lemkin v. Gulde, 16 Misc 2d 1003 , affd. 8 A D 2d 944; Feigen v. Green Harbour Beach Club, 25 Misc 2d 101 ; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672 .) Mr. Justice Christ’s decision in Lemkin v. Guide (supra) establishes that the restriction claime

1973Co. ( 300 N. Y. 334 ) was not involved, but rather the use of another part of the same parcel of property, many cases supported the propriety of proving an easement by implication, citing Phillips v. West Rockaway Land Co. ( 226 N. Y. 507 , supra) and Hofmann v. Hofmann ( 172 Misc. 378 , affd. 259 App. Div. 820 , mod. 283 N. Y. 730 ).

1973Co. ( 300 N. Y. 334 ) was not involved, but rather the use of another part of the same parcel of property, many cases supported the propriety of proving an easement by implication, citing Phillips v. West Rockaway Land Co. ( 226 N. Y. 507 , supra) and Hofmann v. Hofmann ( 172 Misc. 378 , affd. 259 App. Div. 820 , mod. 283 N. Y. 730 ).

1973An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the paroi evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing, (Smith v. Community Synagogue, 309 N. Y. 733 ; Lemkin v. Gulde, 16 Misc 2d 1003 , affd. 8 A D 2d 944; Feigen v. Green Harbour Beach Club, 25 Misc 2d 101 ; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672 .) Mr. Justice Christ’s decision in Lemkin v. Guide (supra) establishes that the restriction claime

1973Corp. v. Kingsway Repair Corp., 223 App. Div. 281, 284 ; Bauer V.

1973Co. ( 300 N. Y. 334 ) was not involved, but rather the use of another part of the same parcel of property, many cases supported the propriety of proving an easement by implication, citing Phillips v. West Rockaway Land Co. ( 226 N. Y. 507 , supra) and Hofmann v. Hofmann ( 172 Misc. 378 , affd. 259 App. Div. 820 , mod. 283 N. Y. 730 ).

1973An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the paroi evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing, (Smith v. Community Synagogue, 309 N. Y. 733 ; Lemkin v. Gulde, 16 Misc 2d 1003 , affd. 8 A D 2d 944; Feigen v. Green Harbour Beach Club, 25 Misc 2d 101 ; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672 .) Mr. Justice Christ’s decision in Lemkin v. Guide (supra) establishes that the restriction claime

1973Co. ( 300 N. Y. 334 ) was not involved, but rather the use of another part of the same parcel of property, many cases supported the propriety of proving an easement by implication, citing Phillips v. West Rockaway Land Co. ( 226 N. Y. 507 , supra) and Hofmann v. Hofmann ( 172 Misc. 378 , affd. 259 App. Div. 820 , mod. 283 N. Y. 730 ).

1968Parol testimony is admissible to prove a condition precedent to the legal effectiveness of a written agreement (see Saltzman v. Barson, 239 N. Y. 332, 337 ; Grannis v. Stevens, 216 N. Y. 583, 587 ; Reynolds v. Robinson, 110 N. Y. 654 ; see, also 4 Williston, Contracts [3d ed., 1961], § 634, p. 1021; 3 Corbin, Contracts [1960 ed.], § 589, p. 530 et seq.), if the condition does not contradict the express terms of such written agreement.