33 Barb. 142 | N.Y. Sup. Ct. | 1860
By the Court,
This complaint states that in March, 1857, the plaintiff, by contract in writing, let to Alice Morgan, and Alice Morgan hired of her, certain premises in Mew York for the term of one year from 1st of May, then next, at the annual rent of nine hundred dollars, payable in monthly payments, and the defendant, by agreement in writing covenanted with the plaintiff, that in case of default of Alice Morgan in the payment of such rent he would pay any arrears thereof which should remain due. That Alice Morgan did make default in such payment, and by reason of the premises the defendant was indebted to the plaintiff. The answer (among other things) states that the plaintiff was, at the time of the making of said agreements, and yet is, the wife of Paul Andriot, who is still living, and that said agreement did not concern or relate to the separate property of the plaintiff, but to property of her husband, or of some person to whom he had transferred it. At the trial, which was by the court without a jury, the plaintiff rested her case on the pleadings. The defendant then offered to prove the facts above mentioned as stated in. the answer. The plaintiff’s counsel objected, and the court sustained the objection and refused to receive the evidence, to which decision the defendant’s counsel excepted. The court thereupon rendered judgment for the plaintiff, and from that judgm'ent the de-r fendant has appealed.
In my opinion the evidence offered by the defendant at the
Sutherland, Allen and Bonney, Justices.]
The judgment appealed from should be reversed, and a new trial ordered, costs to abide the event.