84 N.Y.S. 174 | N.Y. App. Term. | 1903
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.
