Springer v. Stevens — 149 N.Y.S. 905

Majority

p. 905

SPRINGER v. STEVENS.

(Supreme Court, Appellate Term, First Department.

November 19, 1914.)

Headnote

Trial (§ 62*) — Reception of Evidence — Rebuttal Evidence.

In an action for rent, in which payment was pleaded, and evidence given of the delivery of a large number of checks to plaintiff, evidence that some of the checks were applied to a prior indebtedness was admissible in rebuttal of payment.

lEd. Note. — For other cases, see Trial, Cent. Dig. §§ 148-150; Dec. Dig. § 62.*]

Appeal from City Court óf New York, Trial Term. •

Action by John H. Springer against Harry Stevens. From an order denying a motion to set aside the verdict for defendant, plaintiff appeals.

Reversed, and new trial granted.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

Herman G. Loew, of New York City, for appellant.

Henry Staton, of New York City, for respondent.

Plaintiff sued for rental due. Defendant, pleading payment, proved delivery of a large number of checks to plaintiff. When the plaintiff undertook to show that some of these, checks had been by him applied to an alleged prior indebtedness of defendant to himself, the testimony was excluded, on the objection that such testimony was not admissible in rebuttal. But the purpose of this evidence was merely to rebut the defendant’s affirmative proof of payment, and as such was perfectly proper.

Order reversed, and a new trial granted, with costs to appellant to abide the event. All concur.