The facts are sufficiently stated in the dissenting opinion of Mr. Justice Merrbll.
It has been repeatedly decided and laid down as a rule of law by this court that where a sales contract provides for delivery of merchandise by the use of words similar to those contained in this contract, to wit: “ Delivery June, July, August,” such words mean the seller has until the last day of the last month named in which to make delivery thereunder. (Stern v. Wohl, South & Co., 212 App. Div. 154; Bahnsen & Co., Inc., v. Leaf, 203 id. 618; Crown Embroidery Works v. Gordon, 190 id. 472; Childs & Bro., Inc., v. Hirsch & Co., 202 N. Y. Supp. 226; Morel v. Stearns, 37 Misc. 486; 43 id. 639.) The terms of the contract are not denied. In the light of the rule laid down by the court the meaning of the words used is entirely clear. It was, therefore, improper to allow defendant to give testimony to establish a custom or usage giving to such words an entirely different meaning particularly when no such custom or usage had been pleaded. (Healy v. Brandon, 66 Hun, 515; Britton v. Ferrin, 171 N. Y. 235, 242; Ford v. Snook, 205 App. Div. 194, 197; Mutual Chemical Co. v. Marden, Orth & Hastings Co., Inc., 200 id. 121, 124; Home Ins. Co. v. Continental Ins. Co., 180 N. Y. 389, 397; Poland v. Hollander, 62 Misc. 523, 525.)
“ That usage or custom cannot be proved for the purpose of controlling rules of law or to contradict the agreement between the parties, is not and cannot be denied.” (Britton v. Ferrin, supra, 242.)
“ The effect of the evidence was to contradict the plain language of the policy, after its meaning had been settled by the construction of the courts. Usage cannot control law, nor change the legal meaning of a contract.” (Home Ins. Co. v. Continental Ins. Co., supra, 397.)
Because of the evidence of usage or custom introduced by defendant over objection of plaintiff the contract was twisted into an installment contract, although section 126 of the Personal Property Law (as added by Laws of 1911, chap. 571), known as the Sales of Goods Act, provides: “ Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments.”
*241The refusal of plaintiff’s timely application to adjourn, the trial for a reasonable time to permit plaintiff to procure witnesses to rebut the testimony as to usage or custom not pleaded and by which plaintiff claimed to have been taken by surprise, deprived plaintiff of its right to a fan trial upon the alleged usage or custom and in itself requires a new trial.
I am of the opinion the defense is without merit and was clearly interposed to avoid payment solely because of a falling market.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Clarke, P. J., concurs; Dowling, J., concurs in the reversal on the last ground assigned; Merrell and McAvoy, JJ., dissent.