¶1While the contract was in writing and upon its face capable of being performed in a lawful manner by shipment of the alcohol direct from Havana to Holland, it was competent for the defendant to show by extrinsic evidence that the parties in the inception of the agreement intended that shipment be made through the Port of New York. Pollock Cont. (3d Am. ed.) 492; Sirkin v. Fourteenth Street Store, 124 App. Div. 384, 392; Ernst v. Crosby, 140 N. Y. 364.
¶2If under the contract shipment via New York was required, it was conceded for the purpose of the trial that transshipment here would also be required. This, it has been held, would constitute a violation of the National Prohibition Act. Anchor Line v. Aldridge, N. Y. L. J. Oct. 27, 1921.
¶3While the provisions of the contract respecting payment for the alcohol at the National City Bank upon presentation of “ shipping documents and gauge certificate ” cannot be considered cojiclu*273sive upon the intention of the parties that the shipment would be made via New York, -it is an important fact when considered with other evidence in the case. That evidence is to be found in the uncontradicted testimony of one of the defendant’s witnesses. He testified that when the contract was made he suggested to plaintiffs’ representative that the alcohol be shipped direct from Havana to Holland. Plaintiffs’ representative refused to adopt this suggestion and insisted that the goods come via New York. This clearly indicates that it was the original intention of the parties to perform the contract in violation of law. . Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437; Church v. Proctor, 66 Fed. Rep. 240; Pollock Cont. (3d Am. ed.) 493.
¶4The ruling of the treasury department permitting transshipment of alcohol for beverage purposes at the time the contract was made does not affect the legal situation of the parties. Such a ruling was contrary to the statute and could have no effect: Anchor Line v. Aldridge, supra; Merritt v. Cameron, 137 U. S. 542; United States v. Graham, 110 id. 219; Magruder v. Belle Fourche Valley Water Users’ Ass’n, 219 Fed. Rep. 72, 78.
¶5It follows that the defense of illegality interposed by the defendant must prevail and that his motions to set aside the verdict and for a dismissal of the complaint should be granted.
¶6Motion to set aside the verdict granted and complaint dismissed. A stay of thirty and sixty days is granted.
¶7Ordered accordingly.