#### Morris Rosenberg and Barnett Aronson, Respondents, *v.*Julius Kazemier and John Uhl, Appellants.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Evidence—parol to vary terms of written contract.

Where the complaint, in an action to recover a balance alleged to -be due under a written contract for the construction of a building, declares on the contract, and the plans and specifications therein referred to have been clearly identified, oral testimony as to conversations between the parties long prior to the execution of the contract is inadmissible to vary its terms.

Appeal by defendants from a judgment of the Municipal Court of the city of Row York, borough of Manhattan, eighth district, rendered in favor of plaintiffs and against the defendants in the sum of $264, and from that part of the judgment which dismissed their counterclaim, after a trial before the court without a jury.

Arnstein, Levy & Pfeiffer (Alexander Pfeiffer, of counsel), for appellants.

Rosenthal & Steckler (David Steckler, of counsel), for respondents.

Gerard, J.

Plaintiffs, building contractors, sued to recover a balance of $200 claimed to be due upon a contract made by them with defendants for the construction by plaintiffs for defendants of a loft building.

The pleadings were written and verified. In the complaint the plaintiffs counted upon a written contract which they alleged they entered into with the defendants, whereby plaintiffs agreed to erect and finish for defendants a building at Ro. 12 Monroe street, with certain exceptions, such as plmnbiug, painting, etc.,, for the sum of $12,100'; that the defendants had paid on account the sum of $12,500, and had not paid the balance; and plaintiffs alleged that they *45had duly performed each and every of the terms, covenants and conditions of the contract, except as to such terms, covenants and conditions as were expressly waived by the defendants.

The defendants in their answer alleged that the plaintiffs agreed to erect the building provided for in the contract, according to the drawings and specifications made by Max Muller, architect, and alleged that the plaintiffs had failed to comply with the specifications in many particulars mentioned. The defendants also set up the failure of plaintiffs to comply with the specifications as a counterclaim.

Upon the pleadings as stated above, the parties proceeded to trial. Plaintiffs offered in evidence the contract upon which they sued. It is a printed form of building contract, and that part of the contract which is in writing was filled in by plaintiffs’ bookkeeper; in the part in writing it was provided that the building *“*should be erected agreeably to the drawings and specifications made by Mr. Max Muller, architect, and signed by said parties and hereunto annexed.” The contract again, in another place, refers to the specifications, and in another clause to the architect.

It appears that no plans and specifications were signed by the parties or annexed to the written contract, but prior to the execution of the contract, according to the uncontradicted testimony, the plans and specifications prepared by Max Muller, the architect, had been given to plaintiffs. Over the objection and exception of defendants, plaintiffs were allowed to prove that prior to the execution of the contract they had been furnished with a copy of the plans and specifications of Max Muller, that they made an estimate of $15,900, that defendants complained that this estimate was too high, and that thereupon the parties went over the specifications and agreed that metal ceilings should be dispensed with, that a plain front might be substituted for a trimmed front, terra cotta copings for blue-stone copings, and certain other alterations made and that plaintiffs then said that they could build the building for $12,700; and, without any written contract, plaintiffs commenced the building construction on September 7, 1907, and that when *46the second tier of beams was reached the plaintiffs called on defendants for a payment, whereupon the defendants asked for a written contract showing that the building was to be erected according to the plans and specifications above referred to. Plaintiffs claim that defendants said that they wanted to show the contract to a proposed mortgagee, and that thereupon the plaintiffs prepared the contract and signed it.

The plaintiffs having counted on the written contract, the admission of this parol testimony to vary its terms was error. The specifications are referred to in the contract, and there is no question whatever about their identification. If the contract as signed did not clearly express the agreement of the parties, that may be a reason why it should be reformed, but until it is reformed it is the duty of the court to enforce it according to its terms. Zimmermann v. Loft, 125 App. Div. 725. It is, however, to be noted that all conversations testified to by the plaintiffs with reference to a change in the specifications occurred prior to the execution of the contract. It may be that the plaintiffs might be able to recover, disregarding the written contract entirely, but as long as they have counted upon it in their complaint and as long as the specifications referred to in it have been clearly identified, they should not be heard to vary its terms, especially by conversations alleged by plaintiffs themselves to have taken place long before the contract itself was signed.

See also Backer v. Passman, 132 N. Y. Supp. 787, where Mr. Justice Seabury said: *“*While it is true that the specifications were not annexed, they were fully and clearly described and identified in the contract, which was annexed. The contract referred to the specifications as having been prepared by the architects, Schwartz & Gross. In so doing it plainly identified the specifications in reference to which the parties contracted.”

In the case of Wegener v. Butler, 7 Misc. Rep. 17, Mr. Justice Bischoff said: “ Bo drawings or specifications, however, signed by the parties, or otherwise, were annexed to the contract, and thus it became necessary to inquire con*47cerning the drawings and specifications intended, for which purpose resort had to he taken to extrinsic evidence.”

The judgment must he reversed and a new trial ordered, with costs to the appellants to abide the event. •

Seabuby and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.