p. 892(Supreme Court, Appellate Term.Headnote
Sales—Action sou Price—Evidence—Materiality.Where the issue was whether defendant had directed goods to be delivered on his credit to another, and plaintiff’s evidence that defendant had made payments on account of the goods in cash was contradicted by* defendant, who testified that he never paid his bills except by check, there was no error in excluding his check books, offered to corroborate-his testimony, since the fact that he drew checks in payment of his bills had no bearing on the question whether, in a particular instance, he-did or did not pay cash.
Appeal from municipal court, city of New York, Second district..
Action by Isaac Bernstein against William Holtz. From a judgment for plaintiff, defendant appeals.
Argued before BISCHOFF, P. J., and CLARKE and LEVEN--TRITT, JJ.Levy & Myer, for appellant.
Aaron Morris, for respondent.
The issue was whether the defendant was the proprietor of the store at which his meeting with plaintiff’s assignor took place, and whether he did in fact direct the latter to deliver-goods, upon his credit, to that place, at the order of his relative, Laski. Upon this issue the affirmative was supported by the testimony off Laski and of the plaintiff’s assignor, and there are no extraneous circumstances whatever from which the court should necessarily infer that the defendant’s denial was more probably true. There was no-error in the exclusion of the defendant’s check books, offered in evidence to corroborate his testimony that he never paid his business-expenses except by check; this testimony being opposed to the state
p. 893ment of the plaintiff’s assignor that the defendant had made payments, on account of the goods, in cash. Certainly, the fact that the defendant drew checks in payment of his bills, to whatever number, could not bear upon the question whether, in a particular instance, he did or did not pay cash.
The judgment should be affirmed, with costs. All concur.