Philipbar v. Manufacturers Trust Co.

Judgment reversed upon the law and a new trial granted, costs to appellant to abide the event. In our opinion, the plaintiff’s evidence presented questions of fact to be determined by the jury as to whether it was the understanding and practical construction by the parties themselves to the agreement in question that the Senger case was not comprehended by the agreement, and as to whether, if the taking by plaintiff of additional compensation in the Senger case constituted a breach of the agreement, such breach had not been waived by the decedent. Young, Hagarty, Carswell and Tompkins, JJ., concur; Kapper, J., dissents.