[225 N. Y.] Opinion, per POUND, J. [Feb., v. Stern, 177 N. Y. 233, 236; Farmer v. Nat. Life Assn. of Hartford, 138 N. Y. 265; disapproved in Goldey v. Morning News, 156 U. S. 518, 523; Merchants Heat & Light Co. v. Clow & Sons, 204 U. S. 286, 290), and its special appearance can be made only for the purposes hereinbefore indicated. Recent decisions of the lower courts which recognize the right of a defendant to demand a copy of the complaint without appearing generally in the action interpret section 479 of the Code of Civil Procedure as if it introduced a deviation from the direct course of the law suit. The section is a part of one harmonious whole. By giving to a single sentence the effect of an innovation, this defendant has been allowed not only to demand a copy of the complaint, but to obtain a judgment of dismissal under section 480 without appearing generally. The course pursued by plaintiff's attorney was proper. The legal efficacy of the demand for the complaint contained in so-called special appearance was no greater than that of a personal request to be responded to as courtesy might dictate. Even if defendant was entitled to a copy of the complaint without a general appearance, it does not follow that it might also move to dismiss the complaint and appeal from an order denying its motion. No action can be taken on a special appearance that does not have for its basis a challenge to the jurisdiction of the court over the person or property of the defendant. No such challenge has as yet been interposed in this case, yet plaintiff is here with his complaint dismissed. The judgment appealed from should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division. HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, CRANE and ANDREWS, JJ., concur. Judgment reversed, etc. 1919.] Statement of case. [225 N. Y.] JOHN P. CLARK, Appellant, v. CAROLINA AND YADKIN RIVER RAILWAY COMPANY, Respondent. Contracts - construction and effect of letters constituting agreement to do certain work and fixing compensation. therefor. Plaintiff wrote defendant offering to do engineering work required by it" including supervision of construction, furnishing all plans and specifications and negotiations of contracts for six per cent of the completed work ending October 31st, 1914." Later he wrote that by his letter he meant that he would supervise the work and assume the same charges as before, "furnishing the same work, and also paying the expenses of certain employees and after making a charge of six per cent on the total amount of construction, taking from that total of commissions the expenses of these various employees and a certain proportion of the office expenses." For a time, six per cent less expenses was paid plaintiff. Later, the defendant being dissatisfied, plaintiff wrote that it is understood under the agreement by which he was to receive six per cent on costs for engineering services that this charge should "not be more than $6,000." Held, that plaintiff by the latter statement limited the balance payable to him after the expenses were deducted to $6,000, and under this construction there was evidence supporting the plaintiff's claim of a balance due him. Clark v. Carolina & Yadkin River Ry. Co., 175 App. Div. 894, reversed. (Submitted January 30, 1919; decided February 25, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 2, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Theodor Megaarden for appellant. The trial court erred in its ruling on the construction of the agreement [225 N. Y.] Points of counsel. [Feb., alleged in the first cause of action and in dismissing the complaint on the merits at the close of plaintiff's evidence. (Richardson Press v. Vandergrift, 165 App. Div. 180; Fleischman v. Furgueson, 223 N. Y. 235; Fulmer v. Southern Ry. Co., 67 S. C. 262; Lamb v. Norcross Bros. Co., 208 N. Y. 427; S. I. Shipbuilding Co. v. Spearin, 149 App. Div. 854; Stevens v. Amsinck, 149 App. Div. 220; Wirth v. Kahlenberg, 31 Misc. Rep. 803.) The trial court erred in excluding the evidence offered by plaintiff of what was said and done by the parties at the time payments were made by defendant to plaintiff under the agreement as modified alleged in plaintiff's first cause of action, the evidence being offered for the purpose of showing the construction placed by the parties themselves on the agreement, and particularly on the letter of January 2, 1914, which was construed by the court, and in construing the agreement as a matter of law, instead of admitting the evidence and submitting the case to the jury to determine, on all the evidence, the intention of the parties and the terms of the agreement. (Woolsey v. Funke, 121 N. Y. 87; Nicoll v. Sands, 131 N. Y. 19; Sattler v. Hallock, 160 N. Y. 291; Seymour v. Warren, 179 N. Y. 1; Fox v. Coggeshall, 95 App. Div. 410; Genet v. Delaware, etc., Canal Co., 163 N. Y. 173; Baldwin v. Feder, 135 App. Div. 97; Tanenbaum v. Levy, 83 App. Div. 319; 178 N. Y. 594; Lamb v. Norcross Bros. Co., 208 N. Y. 427; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Trustees of East Hampton v. Vail, 151 N. Y. 463; First Nat. Bank v. Dana, 79 N. Y. 108.) Martin Conboy and Philip S. Hill for respondent. The court's construction of the agreement, which is the basis of the first cause of action, is correct. (13 Corpus Juris, 787, § 998; Freeman v. Hedrington, 204 Mass. 238; Elliott v. Wanamaker, 155 Penn. St. 67.) The evidence of what was said and done by the parties at the time 1919.] Opinion, per ANDREWS, J. [225 N. Y.] of the payments, offered by the plaintiff for the purpose of showing the construction placed upon the agreement by the parties, was properly excluded. (Giles v. Comstock, 4 N. Y. 270.) ANDREWS, J. The defendant, a railway corporation, was building a road in North Carolina. On November 3d, 1913, Mr. Clark in writing offered to do the engineering required by it "including supervision of construction, furnishing all plans and specifications and negotiations of contracts for six per cent of the completed work ending October 31st, 1914." Apparently this offer was not entirely satisfactory. The engineering department of the railway seems to have maintained an office at High Point which was in part used for the benefit of other corporations. Mr. Clark had previously been employed by it under some arrangement which does not fully appear. With this in mind, its president, Mr. Coler, spoke of the expenses of this office which had not been mentioned in the offer. Under the prior contract of employment evidently some allowance had been made for these expenses. Mr. Clark replied that by his letter he meant that he would supervise the work and assume the same charges as before, "furnishing the same work, that I had been doing, and also paying the expenses of certain employees at High Point, who were assisting in that work, the same expenses that had been paid by the engineering department before that time; to continue that arrangement and after making a charge of six per cent on the construction, total amount of construction, taking from that total of commissions the expenses of these various employees and a certain proportion of the office expenses." This offer was accepted. There can be little doubt as to what was intended. Mr. Clark was to do certain work, furnishing necessary plans at his own expense. As compensation he was to [225 N. Y.] Opinion, per ANDREWS, J. [Feb., receive six per cent of the cost price of the completed work, less a part of the wages of certain employees and certain office expense of the railroad company. These were to be taken by the defendant from the six per cent and the balance paid to the plaintiff. The position taken by both parties equally upon this trial shows that this was their understanding. The records of these expenses were kept by the railroad company. Not six per cent but six per cent less the expenses was paid to Mr. Clark. The allegation of payment in the answer is based upon the proposition that the latter had received all that he was entitled to, because such a payment has been made. Under this contract work was done in November, 1913. The defendant became dissatisfied and Mr. Coler told the plaintiff that he thought the latter "would receive too much pay." He asked what Mr. Clark thought he would receive up to the completion of a portion of the work. Mr. Clark replied that he thought he would receive about $6,000 in all. Mr. Coler then asked him if he would place a limit to the amount he would receive and Mr. Clark replied that he "would put a limit of $6,000 as to the amount that he should receive" during that time. Later, apparently so that this agreement might be upon record, Mr. Clark wrote Mr. Coler. It is understood that "under the agreement by which I receive six per cent on costs for engineering services that this charge from December 1st, 1913, until completion of the High Point Terminal shall not be more than $6,000." The proper interpretation of this amendment of the original contract which the plaintiff in its complaint concedes to have been made is decisive upon this appeal. If, as the respondent claims, the plaintiff was entitled under it to receive at the most $6,000, less what the railroad company might properly expend upon the office, then the trial court was right in dismissing the complaint |