21 Misc. 460 | N.Y. App. Term. | 1897
The action was to recover for painting certain houses belonging to the defendant. .
, The plaintiff proved that the work was done by him on the order of one "Converse, and to- charge the defendant he then endeavored to show that Converse was her agent respecting the work.
. The defendant denied the agency of Converse, and in defense undertook to prove that she had contracted with Converse for the work and paid him.for it; all of which was excluded under exception. The written- contract With Converse and his receipts for the payments -made thereon were also offered by the - defendant and excluded under exception, on the ground that they were incompetent, immateriál and irrelevant. "This was error.
The vital question involved was whether Converse was, as the defendant claimed, an independent contractor and the plaintiff a
“ Such proof, although consisting entirely of affirmative proof of a contract different from that alleged, was negative in its character, and admissible under a general denial of the allegations of the complaint, and as showing what the contract as made was, and thus subverting the plaintiff’s case.” Hebbard v. Haughian, 70 N. Y. at p. 59.
Where there is a conflict as to who is the real employer it is competent for the defendant to show that he employed another person to do the whole work (Pomeroy v. Pierce, 5 Hun, 119), and paid him therefor. Gerish v. Chartier, 1 C. B. 13. Indeed under a general denial the defendant has a right to show anything tending to disprove the cause of action alleged. Milbank v. Jones, 141 N. Y. 340; Bayl. C. Pl. 231. A general denial, like the general issue under the former practice, puts in issue the existence at any time of the cause of action alleged, and admits of evidence to establish such a defense.
The exclusion of the evidence offered precluded the defendant from showing the terms and conditions under which her property was improved (Dietrich v. Dreutal, 43 Hun, 342), and left the inference undisputed that she had received -the benefit of the plaintiff’s work without paying for it. This may have influenced the jury in finding for the plaintiff.
The exceptions taken are fatal to the judgment, which must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Daly, P. J., and Bischoff, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
