John Van Benschoten, Inc. v. Rondos

Judgment and order denying motion for new trial reversed on the law and the facts, and new trial granted, with costs to abide the event. The order for the sale of the automobile was accepted by the shipment of the automobile and the payment therefor by the defendant. The testimony admitted over objection and exception at folio 339 of the record, to the effect that plaintiff orally warranted that in case the price of the Marmon car should decline between the date of sale and July 1, 1921, the plaintiff would reimburse the defendant for the amount of such decline, was error. It varied the terms of the written contract between the parties. (Eighmie v. Taylor, 98 N. Y. 288; Imperator Realty Co. v. Tull, 228 id. 447, 451.) Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur.