The plaintiff was allowed to prove, in substance, that the defendant verbally warranted that the note was good, and would be paid at maturity. This varied the written agreement represented by the written guaranty of collection. In Van Brunt v. Day, 81 N. Y. 251, a paroi agreement was allowed to be shown, because it did not qualify or change the defendant’s written guaranty. In the present case it would, and therefore would be inadmissible. There is, I think, as the case stands, no question of fraud in it. That question is not presented by the pleadings, and was not submitted to the jury. In the absence of fraud, the writing cannot be contradicted or varied. The plaintiff had, as the court held, lost by his loches his remedy on the written guaranty. He should not, in order to avoid this result, be allowed to prove an inconsistent paroi agreement on the same subject. Upon this ground I favor a reversal.
Hardin, P. J., concurs. For opinion, see 8 N. Y. Supp. 113.