The evidence of the parol negotiations preceding the execution of the written contract of sale was received exclusively upon the allegations of fraud. After the plaintiffs had elected not to proceed on the theory of fraud it was error to deny the defendant’s motion to strike out this testimony, thus allowing the jury to give it consideration for a purpose for which it was not received. Furthermore, such evidence was inadmissible to add a parol warranty of the truck for a special purpose to the written contract of sale. (Builders’ Brick & Supply Co. v. Walsh Transportation Co., Inc., 106 Misc. 460; affd., 189 App. Div. 898; Eighmie v. Taylor, 98 N. Y. 288.) The case is distinguishable from Hoisting Engine Sales Co. v. Hart (237 N. Y. 30), where the written contract contained express reference to the purpose for which the subject-matter of the contract was to be used. Since breach of warranty was the only issue submitted to the jury, judgment must be reversed and a new trial ordered.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
All concur; present, Levy, Callahan and Untermyer, JJ.