The legislative purpose and design in enacting subdivision 1 of section 33-c of the Personal Property Law are frustrated, I very much fear, if we sustain the position taken by plaintiff-appellant.
The contract between the parties explicitly recited that it was the entire agreement between them and that "it shall *Page 247 not be considered modified, altered, changed or amended in any respect unless in writing". To hold that one party may accomplish a change in the amount of compensation to be paid to him under a written contract containing such a clause by the simple expedient and device of calling the change an abandonment, would be to annul the statute and render its operation nugatory. I believe that Presiding Justice PECK stated the matter exceedingly well when he wrote for a unanimous Appellate Division: "The plain fact here, on the face of the bill of particulars, is that there was no abandonment of the written contracts * * *. Obviously the provision in the contracts prohibiting a change, alteration or amendment orally was intended to cover such a situation as is here presented, and the purpose and value of the statute would be nullified if it could be evaded by a play on words. The kind of oral arrangement which plaintiff alleges he made with defendant for successive years, setting aside written agreements just made and substituting oral agreements requiring nothing different or more from plaintiff but granting him increased compensation, makes his case suspect. The purpose of the statute is to enable parties to avoid the assertion of such claims and the prosecution of such actions by formally declaring that their written contract may not be orally changed." (274 App. Div. 476, 479.)
I would affirm the order of the Appellate Division, with costs.
LOUGHRAN, Ch. J., CONWAY and DYE, JJ., concur with LEWIS, J.; FULD, J., dissents in opinion in which DESMOND and BROMLEY, JJ., concur.
Judgment accordingly. *Page 248