Opinion
June 17, 1958
Appeal from the Municipal Court of the City of New York, Borough of Brooklyn, MURRAY H. PEARLMAN, J.
Earl Harrison for appellant.
Irving M. Berry for respondent.
The judgment should be unanimously reversed on the law and facts, with $30 costs to the defendant, and complaint dismissed, with appropriate costs in the court below. The terms of the written agreement were clear and unambiguous. The purported oral modification thereof was without consideration ( Melnick v. Kukla, 228 App. Div. 321) and was otherwise unenforcible under the Statute of Frauds (Personal Property Law, § 31, subd. 1; Martocci v. Greater New York Brewery, 301 N.Y. 57). The alleged custom of granting rebates may not be invoked to vary or contradict the explicit provisions of the contract involved herein ( Gravenhorst v. Zimmerman, 236 N.Y. 22).
Concur — PETTE, HART and BROWN, JJ.
Judgment reversed, etc.