Malloy v. McConnell

Headnote

This is an appeal from a judgment against the defendant for $752.50, entered upon the report of a referee.

The action was brought to recover the value of a quantity of horse feed alleged to have been sold and delivered by plaintiff to defendant, who was executrix of her husband’s will, after the death

of the testator, for the use of the testator’s estate, alleged to have been used in the feeding of horses belonging to said estate. •

The General Term, after a review of the facts, held, that the exclusion of evidence tending to show that the defendant did not hold the horses as part of the assets of the estate, and that they belonged to another person, was error, more especially because there was no original contract with-defendant in relation to the feed, and if she did not own the horses, her promises to pay for the feed could not be enforced, as they would be made in such case to pay the debt of a third person and be void under the statute of frauds.