We need not consider the appellant’s objections to the validity either of the written agreement or of the alleged paroi modification , thereof. We have no doubt, however, that, upon the fully executed performance of such an agreement by the defendant, the plaintiff' was correspondingly bound by his promise of an extension. But of course he was not bound by the paroi modification unless he assented thereto, nor unless the premises were purchased by Ellinger in reliance upon such assent. Now there was a direct issue of fact upon the latter head. If the conversation to which the defendant’s agent testified took place- (as the plaintiff’s agent said it did) at a date prior to the execution of the written agreement, it was- merged in the latter,- and the latter consequently governed.' But if subsequent thereto, the written agreement was, in the single particular in question, modified. Whether the plaintiff agreed to the alleged modification was, therefore, a question of fact to be determined by the jury upon conflicting evidence. The learned trial judge was correct in refusing to direct a verdict for the plaintiff. He erred, however, in directing a verdict for the defendant. He should have submitted to the jury the question as to whether there was a paroi modification of the written agreement. The plaintiff did not, by asking for a direction, lose his right to go to-the jury upon this question of fact. He claimed that right before the verdict for the defendant was actually directed; and he was not precluded by his previous motion *465from claiming that right. (Koehler v. Adler, 78 N. Y. 287; Shultes v. Sickles, 147 id. 704; Clason v. Baldwin, 152 id. 204.)
.The judgment should be reversed and a new trial ordered, with ■costs to abide the event.
Van Brunt, P. J., Rumsey, Patterson ' and O’Brien, JJ., concurred. ■ . .
Judgment reversed, new trial ordered, costs to appellant to abide event.