Adolph M. Bendheim, Appellant, v. Maria Anna Herter, Respondent

Adolph M. Bendheim, Appellant, v. Maria Anna Herter, Respondent. Bequest for the direction of a verdict—a party making it may still insist that a question of fact he submitted to the jury. A party to ah action who, as well as his opponent, requests the direction of a verdict, does not thereby lose his right to go to the jury upon a disputed .question of fact, where he claims such right before the verdict is actually ■ directed. Appeal by the plaintiff, Adolph M. Bendheim, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1899, upon the verdict of a jury rendered by direction of .the court, and also from an order entered in said clerk’s office on the 9th day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes. The action was brought to recover $2,060, the amount of principal and interest -due upon a bond made by the defendant, secured , by a second mortgage upon certain premises. At the time of the agreement hereinafter referred to, the mortgaged premises had been foreclosed under a first mortgage thereon, and were about to be sold under the decree of foreclosure. The defense set up was an agreement entered into between the duly authorized agents of the plaintiff and the defendant, whereby the plaintiff promised to extend the time of payment of the bond in suit until' August 1,1899, upon the defend- . ant’s agreement to purchase the property at the foreclosure sale, and thereupon, with her husband, to execute and deliver to the plaintiff a new bond and mortgage for the same amount, and upon the same terms, as the bond and mortgage sued on. The new bond and mortgage were to be subordinate to a new first mortgage, not exceeding $20,000. The agreement in question was in writing, and its execution is not disputed by either of the parties. Defendant claims, however, that, subsequent to the delivery of this agreement, a conversation was had- between the agents of the respective parties whereby the plaintiff agreed that the premises should-be bought in at the foreclosure sale by one Ellinger, a brother-in-law of the defendant; and the new bond (and second mortgage) executed by him provided that she (the defendant) would in addition thereto give the plaintiff her collateral bond for the same amount. Plaintiff’s agent denies that any such conversation was had subsequent to. the delivery of the written agreement above referred to, but admits that he had a conversation of a somewhat similar tenor with the defendant’s husband a few days prior thereto. Upon the foreclosure sale Ellinger bought in the premises, and subsequently tendered to the plaintiff a bond and mortgage executed by himself and also a collateral bond executed by the defendant — in conformity with the written •agreement, as (upon the defendant’s contention) modified by.parol. Plaintiff refused to accept the same and brought this suit upon the ■original bond. At the close of the trial both parties moved for the ■•direction of a verdict. The court denied the plaintiff’s motion and announced its intention to direct a verdict for the defendant. Before the actual direction, however, the plaintiff asked to be allowed to go to the jury upon the disputed fact as to the alleged oral modification of. the written agreement. This request was refused, and the plaintiff excepted to the refusal. The direction was thereupon given, and the jury accordingly rendered a verdict for the defendant. Charles Goldzier, for the appellant. John F. Coffin, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: We need not consider the appellant’s objections to the validity either of the written agreement or of the alleged paroi modification , thereof. We have no doubt, however, that, upon the fully executed performance of such an agreement by the defendant, the plaintiff' was correspondingly bound by his promise of an extension. But of course he was not bound by the paroi modification unless he assented thereto, nor unless the premises were purchased by Ellinger in reliance upon such assent. Now there was a direct issue of fact upon the latter head. If the conversation to which the defendant’s agent testified took place- (as the plaintiff’s agent said it did) at a date prior to the execution of the written agreement, it was- merged in the latter,- and the latter consequently governed.' But if subsequent thereto, the written agreement was, in the single particular in question, modified. Whether the plaintiff agreed to the alleged modification was, therefore, a question of fact to be determined by the jury upon conflicting evidence. The learned trial judge was correct in refusing to direct a verdict for the plaintiff. He erred, however, in directing a verdict for the defendant. He should have submitted to the jury the question as to whether there was a paroi modification of the written agreement. The plaintiff did not, by asking for a direction, lose his right to go to-the jury upon this question of fact. He claimed that right before the verdict for the defendant was actually directed; and he was not precluded by his previous motion from claiming that right. (Koehler v. Adler, 78 N. Y. 287; Shultes v. Sickles, 147 id. 704; Clason v. Baldwin, 152 id. 204.) .The judgment should be reversed and a new trial ordered, with ■costs to abide the event. Van Brunt, P. J., Rumsey, Patterson ' and O’Brien, JJ., concurred. ■ . . Judgment reversed, new trial ordered, costs to appellant to abide event.