Dress v. Rosen — 84 N.Y.S. 174

Majority

p. 174

DRESS et al. v. ROSEN.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Payment—Prior Transactions—Evidence.

Where defendant, to prove payment, offers checks for a larger amount than plaintiff’s bill, plaintiff may show that the checks were in payment of prior transactions, over objection that the evidence was not within the pleadings.

Appeal from Municipal Court,-Borough of Manhattan, Fourth District.

Action by Henry Druss and another against Max Rosen. From a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Jacob Rabinowitz, for appellant.

Louis B. Boudin, for respondents.

In an action for goods sold and delivered, the defendant set up two defenses—a general denial and payment. To prove the latter, he offered in evidence checks for a larger amount than the whole bill of the plaintiffs, who, in rebuttal, showed prior transactions, and claimed that the checks of the defendant were given in payment of them. The defendant appeals upon his objections, taken with exceptions, that it was improper to receive evidence of sales not within the pleadings, to amend which accordingly no motion was made. The propriety of the testimony given as to anterior transactions is apparent upon inspection of the checks put in evidence by the defendant himself. The judgment should be affirmed.

Judgment affirmed, with costs to the respondents. All concur.