¶1If the disputed facts respecting the first agreement between the parties were resolved in favor of the defendants, the plaintiff would, nevertheless, be entitled to recover on the evidence in this case. Plaintiff’s evidence relating to the making of the second agreement is amply supported by the evidence of disinterested witnesses, and as a contract under seal may be annulled by a substituted parol agreement followed by actual performance (McCreery v. Day, 119 N. Y. 1), the judgment should be affirmed.
¶2Present: Beekman, P. J., Giegerioh and O’Gorman, JJ.
¶3Judgment affirmed, with costs.