I agree that summary judgment should be granted to the plaintiff. However, I do not agree with the reasons advanced in the majority opinion as to why such a result must be reached. I am of the opinion that the subsequent agreement to renegotiate the price, which defendant alleges was made, is not invalid as a matter of law. Defendant’s alleged promise to give all future orders to plaintiff would be adequate consideration for the alleged promise of the plaintiff to renegotiate the prices on orders already delivered. Proof of such consideration, contrary to the majority view, would not, in my opinion, be barred by the parol evidence rule. The exclusionary force of that rule is applied only ‘ ‘ to negotiations or agreements [alleged to have been] made prior to or at the time of the execution of the written contract ”. (Richardson, Evidence [9th ed.], § 597, p. 603.) The rule is inapplicable to subsequent agreements modifying an earlier agreement. (Martin v. Peyton, 246 N. Y. 213, 218.)
However, even though the parol evidence rule is no bar to the proving of this alleged subsequent agreement, I nonetheless conclude that the plaintiff is entitled to summary judgment. The defendant has not only failed to demonstrate adequately that such agreement was made but it has failed to show that there is even a triable issue as to its existence.
Valente, McNally and Stevens, JJ., concur with Steuer, J.; Rabin, J. P., concurs in opinion.
Order, entered on December 11,1964, denying summary judgment, unanimously reversed, on the law, and the motion granted directing the Clerk to enter judgment for the plaintiff for $92,130, with appropriate interest and costs and $30 costs and disbursements of this appeal.