#### The Railway Advertising Co., Respondent, *v.*Henry B. Sire, Appellant.

(City Court of New York, General Term,

May, 1899.)

Pleading An allegation of another written contract amounts to a denial of the one pleaded — Proof of ' a contemporaneous parol agreement.,

Where the plaintiff counts on a written contract for placing defendent’s advertising cards in “ one-third of the cars ” on certain street railways, and the defendant, while admitting that a written contract for advertising was made about the time stated, denies that its terms were identical with those of the contract set out in the complaint, and further alleges that, when the contract was executed, the plaintiff guaranteed that advertising would be done continuously in not less than 500 cars, the making of the contract counted on must be deemed to have been sufficiently denied by the answer. Where the contracts of the parties, which were supposed to be duplicates, do not agree in their terms, the defendant is entitled to show by parol what was said and meant by the parties in regard to displaying the advertisement in at least 500 cars.

Appeal from a judgment in favor of- plaintiff.

A. I. Sire, for appellant.

Greene & Johnson, for respondent.

McCarthy, P. J.

The first point to consider in this case is whether the allegation in the' answer is a sufficient denial of the contract alleged by the plaintiff or not.

If it is, then there, is sufficient reason why, among others, it should be reversed. <

The plaintiff' alleges that on or about September 1st, 1897, among other things a contract in writing was entered into between plaintiff and defendant. The defendant. requested the plaintiff to insert his advertising cards in one-third of the cars on. certain street railways in the city of New, York, mentioned in said contract, for the term of three months, commencing September 6, *6381897. - That hy reason .of said written contract and request, plaintiff did insert the advertising cards of the defendant in said cars for the said term, and performed every act and thing on its part to bé done and performed pursuant thereto, and then goes on and alleges that by reason o'f the terms óf the contract there became due 'and owing- * * *. ■

The defendant, after denying knowledge or information sufficient to form a belief as to the allegations contained in -paragraph 1 thereof, says: *Second. Admits the malting of a certain contract in writing with plaintiff, with respect to advertising, on or about the 1st day of September,*.1897, *but' denies that the terms of said contract were identical with these set out in the complaint, and also alleges that the plaintiff at the time the contract was executed guaranteed that advertising would be done continuously in no less than*500 *cars.*

It is admitted that, at the time of executing a contract in this cause, there was signed at the same time a supposed duplicate, but it differed in a material part .from the one used by the plaintiff. .

We- think that under the decision of Pittenger v. Southern T. Masonic Relief Association, 15 App. Div. 26, it was sufficiently pleaded and that the appellant should have been permitted to show by oral evidence what the real contract made herein was. ■'

The question arises, first, whether this answer, in the particular ' spoken of, Constitutes- either an admission or denial of the allegation as to the making of the contract set out in-the complaint. ~ In other words, whether the plaintiff can be compelled , to resort to •this part of the answer to ascertain .whether '-or not the- answer, contains a denial of -the making of the instrument in the very language of the one annexed to. the complaint.

In the above case cited the court says: “ We are of opinion that the answer stands, precisely as it would if the pleader, in Specifically referring to and answering the second paragraph, had alleged that the defendant made another contract differing from the one set put in the complaint, the effect -of which practically would be a denial that he made the contract set forth by the plaintiff. Both ■ the contracts relate to the same subject-matter, and the plaintiff alleges that the policy which she sets out was the contract between the parties.”

The defendant, on the other hand, alleges that the supposed duplicate, which does not contain some material matters," was made and signed .at the same time in the contract, thereby *639making a distinct issue. Tlie distinct issue is whether the one or the other was the actual contract made between the parties (Pittenger v. Southern Tier Masonic Relief Association, 15 App. Div. 28), *and where a literal performance is impossible or impracticable, or where the language is ambiguous, or susceptible of more than one construction, or is vague, or general, or inappro-*, *priate to express the true intent, extraneous evidence is admissible to explain, and an antecedent parol agreement may be received to point to the intent of the parties.*Blossom v. Griffin, 13 N. Y. 573; Springsteen v. Samson, 32 id. 706.

We think, inasmuch as the two instruments were signed at the same time and were supposed to be duplicates, it should have been clearly allowed and the defendant should have been given the right to show, at the time of contract, what was said and meant by them as to the displaying the advertisement in 500 cars.

The plaintiff was permitted to answer this question, but the question when asked the defendant in direct was excluded.

The defendant was as much entitled to show the number of cars Aronson understood Wineburgh to promise, as Wineburgh was to-show what number he understood the one-third to represent, for Wineburgh was testifying for something not in the contract, as to number of cars, for it merely said one-third of the cars. He said it meant 140 cars.

The court erred in directing a verdict, there was a direct issue raised in the answer for the determination of the jury and should have been left to them.

The important question, as raised by defendant’s answer, was that the contract set forth in complaint was not the contract made and signed by defendant because the terms of the actual contract were not identical with those of the one set out in the complaint.

We think, under all the circumstances, there was error committed, and that this judgment should be and is hereby reversed and a new trial granted, with costs to appellant to abide the event.

Scotchman, J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event. ' '"