App. Div.]

First Department, May, 1916.

that if the contract was secured, the plaintiff was "to become the Lima counsel and representative of the companies that shall execute same and its general manager with headquarters in Lima." His duties as such manager were then prescribed and it was provided that he should receive as compensation for his services in the preliminary work of organizing the corps of experts and the syndicate $5,000 per annum and expenses, and that after the completion of said preliminary work and the organization of the syndicate, his salary should be $10,000 per annum and necessary expenses, and also the expenses "for necessary entertainment purposes" while engaged in securing the contract" and prior to the organization of the company to construct said irrigation work ;" and that after the organization of the company to construct the work, his compensation should be $12,000 per annum and expenses not exceeding $5,000 per annum; that in addition thereto he should receive as further compensation for the entire services rendered onesixth of the total net profits derived from the contract, to be paid as therein provided. The next paragraph of the contract

after those provisions is as follows:

"Should the syndicate named not be formed within a period of three months from this date, or should said project for any reason be abandoned by first party at any time thereafter, such action shall operate a revocation of this contract, and neither party shall be under any obligation to the other. But should said project be subsequently taken up and said contract be sought by first party, the terms and obligations hereunder shall revive and remain in full force and effect."

It was next provided that the agreement between the plaintiff and the defendants should continue during the existence of the contract with Peru, but that if either party "or the syndicate, or their successors or assigns in the companies that shall execute same with Peru, desire to cancel this contract, it may be done upon good and sufficient cause therefor, six months after notice of such desire shall have been given," and in the event of such cancellation, the right and proportion of the plaintiff in and to the net profits should be such "as exist at the time such cancellation becomes effective;" and it was further provided that in the event of the severance of the

First Department, May, 1916.

[Vol. 172. relations of the plaintiff with the defendants, or with the syndicate, or with those representing the interests of the defendants, or the syndicate, the rights and portion of the plaintiff in and to the net profits should be such as exist at the time of severance. The plaintiff alleges that by mutual consent of the parties on or about the 9th day of July, 1914, and prior to the expiration of three months from the date of the contract, the provisions thereof requiring plaintiff to organize a corps of experts for colonization and to form the syndicate were abandoned until after the contract with Peru was obtained and it was agreed that he should devote his time and attention to obtaining said contract; that he performed all of his other duties devolving upon him under the contract; that on or about the 11th of August, 1914, defendants executed and delivered to him a power of attorney authorizing him to negotiate and sign a contract with Peru and that on or about the 6th day of May, 1915, he secured the execution of a contract from the government of Peru in form and on terms satisfactory to the defendants, and on or about the 27th day of May, 1915, presented and delivered it to the defendants, who ratified and accepted it and notified the government of Peru of their acceptance on or before the 20th day of June, 1915, and thereafter and on the 25th day of June, 1915, the defendants duly executed a power of attorney authorizing one Llona of Lima, Peru, to execute a contract with the government of Peru in the name of the defendants for the issue of bonds for £2,000,000 pursuant to a law passed by the Peruvian Congress and approved on the 4th of January, 1913; that in the meantime and prior to the 19th of February, 1915, pending the negotiations for the contract with Peru, there was a contest between the defendants and MacArthur Bros. for the contract and the government of Peru had required each of them to give a guaranty for the faithful execution of the contract by depositing £20,000 in gold in a New York bank to the credit of the government of Peru and that the defendants notified plaintiff, who was then in Peru, that they had made such deposit and he so notified the government of Peru in writing; that MacArthur Bros. failed to make such deposit and the contract was awarded to the defendants; that it was

App. Div.]

First Department, May, 1916.

further provided in the contract between the defendants and the government of Peru that defendants should, within thirty days after they accepted the contract, transfer to a designated bank in Lima, Peru, to the order of the government of Peru, said deposit of £20,000 and on their failure so to do, "the celebration of the contract was to remain without effect; " that on or before the 20th day of July, 1915, the defendants obtained an extension of time for such transfer until the tenth of August of that year, but that the defendants in fact had not made the deposit and failed to transfer the funds and by their failure so to transfer the funds were guilty of a breach of the contract and forfeited and abandoned their rights thereunder without fault of the plaintiff and against his protest and advice and thereby forfeited and destroyed his rights and interest in the premises; and on or about the 28th of September, 1915, the defendants declared and notified plaintiff that they had decided to abandon the project and refused to permit him to further perform or carry out his contract, whereby he suffered damages in the sum of $628,558.85, the particulars of which are set forth.

Evidently with a view to explaining the provisions of the contract between the plaintiff and the defendants with respect to the abandonment thereof by the defendants and the effect of such abandonment, the plaintiff pleaded in the 3d paragraph of the complaint that prior to the making of the contract and for some time thereafter there existed to the knowledge of the parties a provisional government in Peru, there being two claimants to the presidency, which gave rise to a doubt as to whether the government of Peru could make or enter into a valid contract for the issuance and sale of the bonds contemplated by the contract which it desired to obtain from Peru and that the provisions of the contract between the parties hereto authorizing the defendants to abandon it or to suspend action thereunder were inserted solely for the purpose of providing "for such an emergency or contingency" and that the controversy was amicably settled or adjusted without a contest for the office of president soon after the execution of a contract between the plaintiff and the defendants and on or about the 15th day of June, 1914, and that, therefore, those provisions APP. DIV.-VOL. CLXXII.

48

First Department, May, 1916.

[Vol. 172.

of the contract authorizing the defendants to abandon it never became operative.

The learned counsel for the respondent contends that in any event the right reserved by the defendants to abandon the contract between them and the plaintiff was to be exercised before a contract was obtained from the government of Peru; and that such is the true construction of the contract is indicated by the sentence with respect to the revivor of the contract by the resumption of the project and an effort by the defendants to obtain the contract from the government of Peru.

The learned counsel for the appellants contends that the allegations in the 3d paragraph are irrelevant for the reason that upon the trial evidence of the facts so pleaded could not be received. He is quite right in his contention that the only theory upon which evidence of the facts and circumstances existing at the time and surrounding the execution of the contract would be admissible is that the contract is ambiguous, and that such evidence is not admissible, to aid in the construction of an unambiguous contract. (See United Press v. New York Press Co., 164 N. Y. 406; Corse v. Peck, 102 id. 513; Strong v. Waters, 27 App. Div. 299.)

The learned counsel for the respondent, however, claims that the contract is ambiguous, and that, therefore, evidence of the facts alleged in the 3d paragraph would be admissible to explain its meaning. If the evidence would be admissible the allegations cannot be stricken out as irrelevant. But we are of opinion that the contract is not ambiguous, and that if the defendants abandoned it within the time contemplated for its abandonment by them they could not be limited by parol evidence with respect to the reason for or ground upon which they abandoned it. If the right of abandonment had been exercised within the time contemplated therefor, the defendants were by the express terms of the contract at liberty to abandon it for any reason; and to admit parol evidence to show that it was intended thereby to indicate that they were at liberty to abandon it only in the event that owing to political conditions in Peru a valid contract could not be obtained from that government would be to vary the plain terms of the

App. Div.]

First Department, May, 1916.

contract by parol evidence, which is not permissible. Since proof of the allegations contained in the 3d paragraph would not be admissible on the trial they are irrelevant and should have been stricken out. (Uggla v. Brokaw, 77 App. Div. 310; Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121; Isaacs v. Salomon, 159 App. Div. 675; Kolb v. Mortimer, 135 id. 542; Cleminshaw v. Coon, 136 id. 160; Mendelson v. Margulies, 157 id. 666.)

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

CLARKE, P. J., SCOTT, SMITH and DAVIS, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ZAHARIA KERBER, Appellant.

First Department, May 19, 1916.

Crime-trial—right of defendant to adjournment because of engagement of counsel in another case.

A defendant in a criminal case is entitled to a reasonable adjournment to enable him to be defended by counsel employed for that purpose and familiar with the case.

Hence, when on the day set for the trial of a criminal case, counsel appearing for the defendant asks for an adjournment on the ground that the attorney who was to try the case is actually engaged in the trial of another case, and presents an affidavit showing such engagement, and later in the day when the case is called for trial renews the motion and files an affidavit showing that the attorney for the defendant will be engaged for the balance of the day, and such motion is denied, a conviction should be reversed and a new trial granted, although previous adjournments had been granted.

APPEAL by the defendant, Zaharia Kerber, from a judgment of the Court of Special Sessions of the City of New York, Part VI, entered in the office of said court on the 10th day of March, 1916, convicting him of violating the provisions of