Opinion
March 22, 1950.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: The basis of plaintiffs' recovery is an alleged oral modification of a written contract for the sale of spinach which plaintiffs agreed to grow and deliver to defendant. The written contract provided that defendant would pay for the spinach delivered thereunder according to grade. Concededly defendant paid plaintiff the amount due thereunder. Under the oral modification relied on at the trial the defendant agreed to pay the grade 1 price irrespective of the actual grade. The written contract provides in substance that none of its provisions can be waived, altered, or amended, except by written memorandum signed by both parties. We think the court erred in admitting oral testimony to prove a modification of the written contract and erred in denying defendant's motion made at the close of plaintiffs' case to dismiss the complaint for failing to prove a cause of action. (Personal Property Law, § 33-c, subd. 1; Green v. Doniger, 300 N.Y. 238; Siegel v. Goodman, 186 Misc. 108.) All concur. (The judgment appealed from is for plaintiffs in an action for merchandise sold and delivered.)