Majority
p. 874Samuel Goldberger, Resp’t, v. Essie M. Gallagher, App’lt. N. Y. C. C., February 11, 1895.
Charles A. Flammer, for app’lt; Hahn & Hyers, for resp’t.
The complaint alleges delivery of the goods in question. The answer, by not denying that material allegation, admitted it. So it was not necessary for the plaintiff to have proven delivery. Defendant’s plea of former action pending was not sustained by any of the testimony submitted. In fact, the testimony of even defendant shows that the action referred to was abandoned and discontinued by express agreement of the parties thereto. A formal order of discontinuance, entered and filed in the court where said action was pending, while advisable, was not necessary. The answer of the defendant certainly admitted an indebtedness of $125, under the agreement mentioned in paragraph 111 of the answer, providing the jury believed that she refused
p. 875
to carry out said agreement unless she received a receipt for the money paid plaintiff under such agreement. They evidently believed that to be so. They could not well do otherwise, because the defendant so testified. Therefore, her answer, as before shown, she having admitted making of the agreement, and her testimony showing that she refused to carry out the terms of said agreement (except to the extent of §25) unless plaintiff gave her a receipt for money paid,—something she was not in law entitled to, as a matter of right,— is in law an admission of her indebtedness to the extent of §125; and therefore the trial justice was riget in directing the jury; to find a verdict for plaintiff for at least that amount. These are the only points raised by the appellant’s counsel, and, as we have pointed out, they are, in our judgmeni, without legal merit. We have examined the appeal record to find out whether or not any error was made, and, finding none, the judgment must be'affirmed with costs.