App. Div.] Third Department, May, 1908. I do not think that the fact that two applications in the same language were signed with reference to the same property, unaer the circumstances of this case, conclusively indicates an intention to accept and pay for water under two separate contracts. The plaintiff was entitled to what water it needed in its business under the first application, and it is not easy to see what necessity or propriety there was for a second application except to have the defendant acknowledge the receipt of the second meter and to become responsible for damages to it in case of its injury by misuse or freezing. The plaintiff was bound to furnish the defendant's plant with water for the purposes agreed upon, upon its usual terms, and the amount of water so furnished was to be considered in fixing the rate. It is apparent from the rates established by the plaintiff that it can afford to furnish a customer a large quantity of water at a less rate per 1,000 cubic feet than a small quantity. There is no evidence from which the court can determine whether it is a greater cost to the plaintiff to furnish a given quantity of water through a four-inch meter or through two two-inch meters, or whether the price for water depends upon the size of the meter through which it is served. Those facts were necessarily important, and were matters with reference to which the plaintiff was fully informed, and we cannot assume by its remaining silent upon that subject that proof of the actual facts would have been beneficial to it. If it had another schedule which permitted it to charge a greater rate because of the size of the meters or number of the meters used for furnishing water to the same plant for the same use, that fact should have appeared. Unless an increased charge was permissible on account of the extra cost of service through two meters, an attempt to make such charge would be unreasonable and unlawful. The only subject of contract between the parties was the supplying of water to the defendant's plant. The water was taken directly from the main into reservoirs, where it was kept for The two supply pipes did not, therefore, furnish water for different purposes or uses, but each supplied such reservoirs for the general uses of the plant. This was the use which both parties had in mind when the first application was made, and at all times afterwards. Without regard to the number of applications I think they refer to the same subject and should be read together as one con use. Third Department, May, 1908. [Vol. 126. tract, and the defendant in having the price determined is entitled to have all the water furnished to the reservoirs during the quarter considered as a basis therefor. The evidence stricken out clearly tended to show that there was no intention upon either part to make two separate and distinct contracts, and the opinion of the court fairly shows that such was its understanding of the facts, but it felt constrained to disregard such evidence for the reason that it was considered as contradictory to the terms of the written agreements. The evidence stricken out did not tend to contradict or vary the terms of any written agreement; it tended to show that there was but one contract between the parties, and that it covered all water to be furnished. The new pipe was not inserted and the new meter put in use under any separate contract. The application with reference to it, upon the defendant's theory, was first suggested several days after the meter was in actual use, and upon the law applicable to public service corporations there was no consideration upon which it can rest as a contract. As before stated, if delivering the water through a twoinch meter put upon the plaintiff an extra burden and thus constituted a consideration for the alleged new contract, it was its duty to show such fact. The only new contract shown which rests upon any consideration is to put in the extra two-inch meter in consideration that the defendant is to pay the cost of tapping and of putting in the pipe, and to be responsible if the meter is injured by misuse or freezing. I, therefore, favor a reversal of the judgment both upon the law and the facts. A new trial should be granted, with costs to the appellant to abide the event. All concurred, except SMITH, P. J., and SEWELL, J., dissenting; COCHRANE, J., concurred in memorandum. COCHRANE, J. (concurring): The storm center in this case is the following brief sentence in a contract of considerable length, viz.: "The supply is to be taken from a 2" meter." If that sentence is clear and unambiguous the rule applies that parol evidence may not be received to change its meaning. But there is another rule of construction equally well established, that parol evidence may be received to explain an ambiguity or to show what the parties to a contract intend by the App. Div.] Third Department, May, 1908. use of words employed by them not on their face clear or unmistakable. These rules of construction do not conflict, nor is the one an exception to the other. (Thomas v. Scutt, 127 N. Y. 141.) Considering the contract of February 1, 1905, in its entirety the meaning of the sentence above quoted is not entirely clear. It is stated in the contract that water was desired for defendant's "laundry and manufacturing uses." Whether the clause "the supply is to be taken from a 2" meter," which immediately follows the statement of the purpose for which the water is required, is a limitation on the supply of water as confidently claimed by plaintiff or whether it is merely a description of the method of delivering and measuring that supply is uncertain. This uncertainty is more pronounced in view of the indispensable necessity of a proper and sufficient water supply to conduct the business for which it was intended and the inherent difficulty in understanding why different prices should prevail dependent upon the method of delivery rather than the amount delivered. Such uncertainty in the meaning of the contract at once opens the door for the introduction of parol evidence to properly understand what the parties intended. The circumstances under which they made their contract and under which the defendant conducted its business so far as known to plaintiff and the conversations between the representatives of the different parties were all pertinent to this question and I think the testimony which the learned trial justice struck from the case should have been retained and considered by him in construing this contract; not for the purpose of varying its terms but for the purpose of ascertaining its meaning. I am not unmindful that defendant is confronted with the argument that the writing of March twentieth was unnecessary if the contract of February first covered the subsequently increased supply. That is a circumstance which should be considered in conjunction with all the other circumstances and in the light of such explanation as defendant may be able to give. Its force and weight need not now receive further consideration as upon a new trial other facts may magnify or minimize its importance. Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event. Third Department, May, 1908. [Vol. 126. EUGENE B. CURTIS, Appellant, v. HARRIET A. CURTIS and Others, Defendants, Impleaded with HARRY CURTIS and Others, Respondents. A complaint is demurrable which shows on its face that necessary parties are not joined. A provision of a will whereby testator gave the income of a house to his children with remainder to their children, which is copied into a complaint, is not equivalent to an allegation that there are grandchildren surviving so as to make the complaint demurrable for defect of parties. CHESTER and SEWELL, JJ., dissented. APPEAL by the plaintiff, Eugene B. Curtis, from a judgment of the Supreme Court in favor of the defendants, Harry Curtis and others, entered in the office of the clerk of the county of Saratoga on the 5th day of October, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, sustaining the said defendants' demurrers to the amended complaint. J. W. Atkinson, for the appellant. Thomas O'Connor, for the respondents. KELLOGG, J.: I think the will did not suspend the power of alienation. A complaint is demurrable for a defect of parties where it appears upon the face thereof that necessary parties are omitted. (Code Civ. Proc. § 488.) It is claimed that the provision of the 4th item of the will, copied into the complaint, sufficiently indicates that there is such defect of parties. By that item in the will the testator gives the income of his house and lot to his three children during their natural lives, and then provides: "And after the death of my said sous I direct that the same shall go to their respective child or children, and that the child or children of each of my said sons shall only take the share that his or her or their father would have taken had I died intestate. And if any of my said sons shall die leaving no children him surviving, then I direct that the share which would have App. Div.] Third Department, May, 1908. gone to his child or children shall go to the child or children of my other said sons in this paragraph mentioned." I do not think that this is equivalent to an allegation in the complaint that there were children of any of the sons surviving. If there were such children, any party to the litigation had the right, upon an application to the court, to have them brought in and their rights adjudicated. The testator was not providing for a situation as it existed in 1889 when the will was made, but for a situation as it might exist upon the death of one or more of his sons after his death. The provision cited would relate to children born after the making of the will as well as those born before, and it cannot be ascertained from the will itself whether any of the sons have children. There was no defect of parties appearing upon the face of the complaint; the interlocutory judgment should, therefore, be reversed, with the usual leave to the defendants to withdraw the demurrers and answer upon payment of costs. All concurred, except CHESTER and SEWELL, JJ., dissenting. Interlocutory judgment reversed, with costs, and demurrers overruled, with costs, with usual leave to defendants to withdraw demurrers and answer upon payment of costs in both courts. ALFONSO COLANERI, Respondent, v. THE GENERAL ACCIDENT ASSURANCE CORPORATION, LIMITED, Appellant. Insurance Third Department, May 22, 1908. false statements in application — policy void. Where one who has within two years suffered from an abscess in the middle ear with mastoiditis and received treatment therefor, makes out an application for health insurance wherein he states that he has not had medical treatment during the past five years except for stomach trouble, and it is provided that if any statement in the application be untrue the policy shall be void, he cannot recover for a disability caused by an abscess in the ear, even though he told the agent that he suffered from deafness, since that is not the same as inflammation of the inner ear. APPEAL by the defendant, The General Accident Assurance Corporation, Limited, from a judgment of the Supreme Court in favor |