Malcolm v. Lyon

Except as to the partnership of the plaintiffs, the pleadings present no issue for trial. The answer purports to be a genez’al denial; but that denial is coupled with the condition, “ except as qualified by the offer of judgment.” Since the case contains no offer of judgment, it is impossible to perceive the-scope and application of the attempted traverse.

Again, the answer was amended by inserting the paragraph, that “ with the exception of the matters admitted to be due in paragraph second hereof, defendant alleges payment by him of the items set forth in the bill of particulars with the exception of -; ” with this blank how can it be known what payments are alleged ?

Such being the pleadings before us, we should be justified in declining to examine the record; but as the plaintiffs chose,, nevertheless, to pz’oceed with the trial, we shall disregard the defects in the answer, and accept it as sufficient for its .intended purposes.

The very careful opinion of the learned referee presents a satisfactory argument in support of his findings of fact- and conclusions of law; and, in vindication of the judgment, we have but. to expose the futility of the exception to evidence on which appellant relies for reversal.

The error suggested by that exception consists in the admission-of the orders for work; but as, with a few unimportant exceptions, no ground of objection to the evidence was indicated, the-exception is nugatory. Bergmann v. Jones, 94 N. Y., 51 .

On the argument the contention was, that it did not appear that defendant had authorized the orders; but the evidence was-distinct and ample that they were issued by his agents, or else-recognized and adopted by himself.

Bearing in mind that the bill of particulars is in evidence, and-recollecting the testimony of the plaintiffs, it is idle to urge that performance of the work was insufficiently proved.

There is no merit in the appeal, and the judgment is affirmed^ with costs.

Bookstaver and Bischoff, JJ., concur.