Opinion
Submitted February 7, 1980
Decided March 18, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LESTER E. GERARD, J.
David E. Sallah for appellant.
Morris Shapiro and Jerome M. Luks for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
It is true that parol evidence may be admissible to prove a condition precedent to the legal effectiveness of a written agreement if the condition is not contradictory or at variance with its express terms (Hicks v Bush, 10 N.Y.2d 488, 491; see Long Is. Trust Co. v International Inst. for Packaging Educ., 38 N.Y.2d 493, 496-497). But that rule is inapplicable on the facts here. The allegedly unexpressed condition to the promissory note — that defendants, despite their having signed as makers of the note, were not to be held personally liable — was clearly inconsistent with not only the unqualified form of this negotiable instrument, but with its explicit waiver of "the right to interpose any defense, set-off or counterclaim whatsoever" as well (see Fleck v Bank of Suffolk County, 67 A.D.2d 676, 677; Meadow Brook Nat. Bank v Bzura, 20 A.D.2d 287, 290). Defendants' averments that there existed an oral understanding that they would not be liable on the note did not therefore stand in the way of plaintiff's motion for summary judgment.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.