Opinion
Argued March 1, 1949
Decided April 14, 1949
Appeal from the Supreme Court, Appellate Division, Second Department, LIVINGSTON, J.
Joseph Apfel for appellant.
Arnold J.B. Wedemeyer for respondent.
We read the complaint as alleging an agreement for the sale of real property which it is now sought to specifically enforce. Neither the parol evidence rule nor the Statute of Frauds forbids proof of the actual agreement between the parties in order to resolve an ambiguity, or establish that a printed portion of the form executed was mistakenly used to describe the G.I. mortgage already explicitly provided for, or that the writing either does or does not accurately evidence a prior oral agreement. There must be a trial and evidence taken. For these reasons, the judgment of the Appellate Division dismissing the complaint on the law should be reversed, and in all other respects affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and BROMLEY, JJ., concur.