It is conceded that the instrument sued upon is a promissory note. This was so decided by this court and by the court of common pleas, in an action upon a similar instrument. Chase v. Behrman, 1 City Ct. R. 352. The consideration for the instrument was declared upon its face to be “for the privilege of advertising purposes of one panel, each 7x22 inches, in 15 cars of the Broadway and 7th Avenue Railroad Company, in the city of New York, for the term of one year. ” The note implies that the plaintiff having given the defendant this “privilege,” it (the note) was given in payment for the license. The effective giving of the privilege was not a condition subsequent, but an act concurrent with the giving of the note; for regularly every month thereafter installments were to be paid until the entire obligation was discharged. But how was the privilege to be enjoyed? Who was to determine the form or design of the sign to be put up, and to select which of the several panels of the car into which it should go ? In this respect the instrument is ambiguous, for it fails to give us any light whatever upon the subject. Evidence furnishing these particulars would not alter or *66vary the consideration clause of the note, for the instrument contains nothing whatever upon the subject. To this extent, the defendant was entitled to give evidence under the answer to prove a total or partial failure of consideration.
The rule which excludes paroi evidence where contracts are reduced to writing is not quite as broad as the terms in which it is commonly stated would seem to imply. It only excludes any other evidence of the language used by the parties in making the contract than that which is furnished by the instrument itself. 1 Geeenl. Ev. 316,321. For illustrations of the rule, see Moore v. Meacham, 10 N. Y. 207; Field v. Munson, 47 N. Y. 221; Arthur v. Roberts, 60 Barb. 580; Hinnemann v. Rosenbaek, 39 N. Y. 98; Walrath v. Thompson, 4 Hill, 200; Bank v. Strever, 18 N. Y. 502.
The plaintiff was entitled to recover on the mere production of the note, but the defendant had the right to attack the consideration of it, under his special defense, and the onus of proving the defense was upon him. He could not alter, vary, or contradict any of the written portions of the contract, but could, to the extent before stated, throw light upon the ambiguous clause in regard to the consideration for the contract by proving its meaning. Upon the former trial of the case, the defendant was not limited in his proofs to the extent before stated, and for this error the judgment was reversed.1 The reversal of that judgment for error in admitting evidence did not justify the exclusion upon the second trial of all evidence on the part of the defendant. It follows, therefore, that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Not reported.