This action was brought to recover a balance due on a promissory note, the consideration for which was money advanced by the plaintiff to pay for a liquor tax certificate, taken out by and in the name of the defendant. The defense pleaded was an oral agrees merit, made before the making and delivery of the note, that the defendant should only be required to pay the sum of eighteen dollars and • seventy-five cents per week so long as he remained in business .and purchased beer of the plaintiff.
The evidence of the verbal agreement was not competent to con- ■ tradict or vary the terms of the written instrument. (Jamestown Business College Association v: Allen, 172 N. Y. 291.) However, it was reeeivea without objection and we will consider its effect. The defendant testified that the arrangement for taking out the license was made with the- plaintiff’s collector who informed *831the defendant that, if he should discontinue taking beer and should close out, he would not have to pay any more license, but that did not amount to an agreement that the note should be considered paid upon the plaintiff’s discontinuing business. Said statement was not inconsistent with a continuing obligation on the part of the plaintiff to pay any unpaid balance on the note. Upon discontinuing business the plaintiff- might have obtained a rebate for the unexpired term. It appears, however, that he was convicted of a violation of the Liquor Tax Law, thereby forfeiting the rebate to which he would otherwise have been entitled. The conversation testified to did not establish an agreement that the note, which was subsequently given, should be deemed paid upon the defendant’s discontinuing business, even had it been competent thus to vary the terms of the written instrument, and it was error to dismiss the complaint.
The judgment should be reversed.
Woodward, Hooker, Gaynor and Rich, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.