Stark v. McClosky — 2 N.Y.S. 737

Majority

p. 737

Stark v. McClosky.

(City Court of New York, General Term.

November 30, 1888.)

Headnote

Sale—Action for Price—Evidence—Purchase from Agent.

In an action for the price of goods, for which defendant contends that he has paid, it is error to exclude defendant’s evidence to show that at the time of the sale plaintiff was the manager of a company, and that the transaction was with the company.

Oil exceptions from trial term.

Action by J. Emery Stark against Charles McClosky for the price of goods sold and delivered. After verdict for plaintiff, defendant moves for a new7 trial on exceptions which were ordered to be heard in the first instance at the general term.

Argued before McAdam, C. J., and Browne and Ehrlich, JJ.

R. H. Charming, for appellant. J S. Merwin, for respondent.

The action is for a balance claimed to be due for goods sold and delivered. The answer put in issue every allegation of the complaint. An issue in the case was whether the contract of sale was in fact made with plaintiff in his individual capacity or as the representative of the Central Moulding & Lumber Company. The defendant requested to be permitted to give testimony showing that the plaintiff was the manager of the company at the time of the transaction referred to in the complaint, and that the transaction was in fact one with the company; and that, if there was any liability on the part of the defendant, (which is denied, the defendant claiming payment,) it was to the company. The justice declined to receive the evidence. The defendant thereupon excepted.

The ruling was error. The exception w7ill be sustained; the verdict in favor of the plaintiff will be set aside; and a new trial ordered, with costs to abide the event.

McAdah, C. J., and Ehrlich, J., concur.