At the first trial of this case in the Municipal Court, the trial judge excluded testimony offered by plaintiff to support its claim that the written order did not express the whole contract between the parties. Upon appeal, the Appellate Term, in reversing the judgment of dismissal against plaintiff, held that proof of the alleged oral agreement should not have been barred because “ it is fairly arguable that the written order is incomplete.” From this order of reversal, defendant subsequently moved in this court for leave to appeal. We denied that application.
After a retrial in the Municipal Court, where plaintiff has recovered a judgment, the case is now here by permission following an affirmance of the judgment by the Appellate Term.
*793In my view, the writing, as indicated by the ambiguous language used in the instrument shows that it did not purport to express the entire agreement between the parties. In such case, parol evidence may be received to supply the terms of the contract not embraced in the writing. (Thomas v. Scutt, 127 N. Y. 133, 138.) The parol proof here does not contradict, but merely supplements the express provisions of that portion of the contract which is in writing.
A jury upon adequate proof has found that plaintiff was entitled to recover on the contract as alleged in its’ complaint. That finding should not be disturbed.
The determination of the Appellate Term should be affirmed.
Mabtin, P. J., Townley, Glbnnon and Callahan, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to affirm, with opinion.
Determination of the Appellate Term and judgment of the Municipal Court reversed, and the complaint dismissed on the merits, with costs to the defendant in all courts.