not made by either the plaintiff or the defendant during the trial. The reason for the insertion of paragraph (4) of the contract clearly appears from the testimony. The defendant Fred A. Church had had great trouble in a former transaction of this kind. A large amount of money had been invested in the construction of an amusement park. When the construction of said park commenced there was no requirement for a permit therefor and there were no restrictions in relation thereto. After a large amount of money had been expended ordinances were passed placing great restrictions on the construction and operation of amusement parks, necessitating the obtaining of a permit for the operation of the same. It was impossible to comply with these requirements, and a large loss ensued. Church told the plaintiff-respondent this (fols. 282-288). When the contract in suit was being considered, the defendants Jaffe and Church had ascertained that there were no ordinances in relation to the opening and operation of amusement parks, or in relation to securing licenses therefor (fols. 282-288, 372-373). They informed the plaintiff-respondent of this and, although he insisted that he would see that they had no trouble in the matter, they refused to have the contract executed unless it was specifically written in said contract that it would be void unless a first permit could be obtained so that they, or the company to whom the contract was to be assigned, knew definitely under what restrictions they could operate, or whether they could operate at all. They did not intend to build an amusement park and then find that it could not be operated. No first permit or other permit was ever obtained. The defendant Church testifies as follows (fols. 280, 288): “Q. Paragraph fourth of the contract sued on, Plaintiff's Exhibit 1, provides, 'It is understood and agreed that the said premises are leased by said lessees for the purpose of conducting thereon an amusement park, an auto park, and all other businesses similar and pertaining thereto, and in the event that a first permit cannot be obtained for the purposes before stated, then this lease shall be terminated and be null and void.' Was a first permit or any permit ever obtained for an amusement park? A. Not by me. Q. Was it by anyone? A. Not that I know of. Q. Did you at any time have any conversation with Mr. Saulsberry, the plaintiff in this action, in relation to the obtaining of a first permit for this amusement park? A. I did. Q. State when and where? A. Just before the contract was signed. Q. Where were you? A. I was in Mr. Wilson's office, with Mr. Saulsberry and Mr. Cohan and Mr. Jaffe and Mr. Wilson. Q. State what was said by you and Mr. Jaffe in Mr. Saulsberry's presence, and by Mr. Saulsberry in relation thereto? A. I told Mr. Saulsberry that I did not want to have anything to do with that property unless we had a first permit to go on there and build an amusement park; that we just got through with a very bitter experience in Seattle, where we were turned down and had to give up our contract on account of not being able to get a license, and we had just come from the County Clerk's office of the County of King, where we had applied for a permit to build an amusement park at Rainbow Park, at Bryn Mawr, Washington, and we were informed by the County Clerk, who takes the applications, that there was no —we could not get a permit for an amusement park, they did not have any. By the Court: Q: You told this to Mr. Saulsberry, did you? A. I told this to Mr. Saulsberry. The contract had been written without the first permit specified in it, and I said, “Mr. Saulsberry, unless we can have a first permit to build this park on this property I will not consider going on there and spending any of my money or any of any company's money on this property, with the chances of having it taken away from us or having it thrown out and not being able to run an amusement park after we got it built.' Mr. Saulsberry sat back in his chair and he said, 'I will guarantee that you fellows will not be molested over there. I will guarantee that you can do anything you want.” I said, “That is all very well, Mr. Saulsberry, for you to guarantee, but I want it written into the contract in some shape, so that if we cannot get that permit—and I know we cannot get it now, because I had just come from there—we will not be held responsible for this lease.' A. (continued) So Mr. Saulsberry said, 'Well, if that is the way you feel about it, write it in there.' So I took the copies of the contract and wrote it in in my own handwriting, and initialed the page that it was on. The Court: And you gentlemen agree that that provision was in the contract ? Mr. Scoble: Yes, sir." (and fol. 291): “By Mr. Scoble: Q. Was any first permit ever obtained for an amusement park? A. It was not.” While a permit for a dance hall was assigned to F. A. Church on October 3, 1927, this was only for one unit of an amusement park (fols. 373374). The provisions of paragraph (4) of the contract (fols. 385-386) were a condition precedent and were put in for an express purpose. The burden of pleading and proving that the said permit had been obtained was on the plaintiff-respondent. This he failed to do. See: Gminder v. Zeltner Brewing Co., 126 A. D. 776; The plaintiff-respondent states in his points (p. 6) that the contract was a lease of an existing amusement park. This is not so. There was no amusement park there. The purpose of the contract was for the construction of an amusement park (fols. 282-293), and this could not be done unless a first permit was secured. The plaintiff-respondent knew this, and agreed thereto (fols. 284-286, 288). This is not denied. In fact, the plaintiff-respondent agreed that he would guarantee that they could do anything they wanted (fol. 285). No entry upon the property was ever made by or on behalf of the defendant Church. The corporation was organized, and the contract was assigned to the corporation on the sixth or seventh day of October, 1927 (fols. 300-301). The plaintiff-respondent was present at this time and knew of it (fols. 301-310). It was accepted by the plaintiff-respondent, and signed by Mr. Cohan on behalf of the company, and delivered to the plaintiff-respondent. F. A. Church testifies (fols. 309-311): “So then, to the best of my recollection, Mr. Wilson wrote on that, I suppose he wrote, “Accepted by the Company,' and handed it to Cohan; Cohan looked at it, signed it, and passed it back. He then passed it over to Mr. Saulsberry, and Mr. Saulsberry said, “Well, this is agreeable to everybody here, is it?' And we all said yes. 'Well,' he said, “who is here for the company to receive it?' We said, “Mr. Cohan. He is the only one authorized to receive it.' Mr. Cohan signed it, it was passed back to Mr. Saulsberry, and Mr. Saulsberry took this copy and said,—Well, he wrote something on it, which I supposed was his acceptance of it, and put it The Court: Strike that out, which I supposed was his acceptance of it.' Mr. Dougherty: Yes, I move to strike that out. Q. Did he see it? A. He wrote something on it, to the best of my recollection he wrote something on this thing and put it in his pocket. The other copy was attached in our presence to that contract, and handed to Cohan with the contract. Q. At the time Mr. Saulsberry wrote on that assignment did he say anything? A. He says, this is agreeable to him.” In the examination of the plaintiff-respondent before trial he admitted that he had received a copy of said assignment (fols. 354-355), and had it home, and would produce it (fols. 358-359). Upon the trial, however, it was not produced, although a notice to produce was served on the attorneys for the plaintiff-respondent (fols. 359360). According to Saulsberry's own testimony, the Dorans were collecting rents from cottages during the months of January, February, March, April, May and June, 1928, and turning the money over to him (fols. 166, 196-197). Although the plaintiff-respondent claims that Jaffe was on the grounds operating them, and the contract |