Opinion
March 21, 1960
In an action by a lessee for a judgment declaring that he had validly exercised the option in the lease to purchase the property, the appeal is from an order and judgment (one paper) which (1) granted his motion for summary judgment, and (2) declared, inter alia, that he had duly and validly exercised his option to purchase the property and that an enforcible contract of sale exists between the parties. Order and judgment unanimously affirmed, with $10 costs and disbursements. A photostatic copy of the lease was submitted at Special Term and in this court. If it be assumed that paragraph 21, which is printed, and paragraph 29, which is typewritten, the provisions in the lease which have the most material, but not the sole, bearing on the option, are repugnant, then the principles of construction must be applied. When a contract contains two repugnant provisions, one printed and the other typewritten or handwritten, the written provision overrides the printed one and controls the interpretation and construction of the contract ( Poel v. Brunswick-Balke-Collender Co. of New York, 216 N.Y. 310, 322; Heyn v. New York Life Ins. Co., 192 N.Y. 1). In our opinion, the contract, when considered together with the affidavits submitted, should be construed by the court in favor of respondent's contention (see, e.g., Hartigan v. Casualty Co. of America, 227 N.Y. 175, 178; Brainard v. New York Cent. R.R. Co., 242 N.Y. 125, 133; Empire Properties Corp. v. Manufacturers Trust Co., 288 N.Y. 242, 248), as it is the only construction which can be fairly placed thereon (cf. Utica Carting, Storage Contr. Co. v. World Fire Marine Ins. Co., 277 App. Div. 483, 488). Ughetta, Christ, Pette and Brennan, JJ., concur; Beldock, Acting P.J., concurs in the result. [ 17 Misc.2d 654. ]