Ventimiglia v. Brockway Motor Truck Corp.

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.…