Opinion
May, 1923.
Judgment and order affirmed, with costs. All concur, except Davis, J., who dissents in a memorandum.
I dissent. The contract was for the care of an infirm, aged woman in a home maintained by plaintiff. It was not executory (13 C.J. 245; Farrington v. Tennessee, 95 U.S. 679, 683; Justice v. Lang, 42 N.Y. 493, 496; Williston Cont. 13) but was in a present state of execution and performance. If the paper referred to in the signed contract is all included, it was a contract with an option to either party to terminate, enforcible until such time as notice is given ( Hess v. Roberts, 124 App. Div. 328; Schweinburg v. Altman, 145 id. 377; affd., 207 N.Y. 681) and binding on the parties as long as they continued to act under it before revoking or terminating it. ( Kenny v. Knight, 119 Fed. Rep. 475; Mechanics' National Bank v. Jones, 76 App. Div. 534; affd., 175 N.Y. 518; 13 C.J. 606.) No notice of termination was given. It was competent to give parol evidence showing the intent of the parties as to what part of the "terms of admission" were to be included in the agreement, it appearing that some of them obviously were not applicable. ( Stanton Co. v. Rochester German Underwriters' Agency, 206 Fed. Rep. 978; 13 C.J. 544; United States v. Bethlehem Steel Co., 205 U.S. 105, 118; Wilson v. Randall, 67 N.Y. 338; 13 C.J. 544, 568; 22 id. 1144.) Taking the evidence in the light most favorable to plaintiff against whom the verdict was directed, it is inferable that the "rules and regulations" were included in the contract for a particular purpose, to wit, to show the obligation of furnishing a home and care to the aged woman and were limited to that purpose only. ( Guerini Stone Co. v. Carlin, 240 U.S. 264.) There was sufficient proof of subsequent modification, or waiver of probationary period, as to present a question of fact. There may be modification by parol of such a contract. ( Mayor, etc., v. Butler, 1 Barb. 325, 338; McCreery v. Day, 119 N.Y. 1; Harris v. Shorall, 230 id. 343, 348; 13 C.J. 672.)