
    James W. Green, Respondent, v. Charles H. Hill, Appellant.
    
      Pleading — action, upon an account — denial of indebtedness and allegation of payment— right of defendant to show advances made to the assignor of the plaintiff.
    
    Where a complaint alleges the transfer to the plaintiff of a claim against the defendant, and the defendant denies that at the time of the assignment he was indebted to the plaintiffs assignor, and farther alleges that ho has paid ail ■claims held against him by such assignor, the defendant should be allowed to prove that advances had been made by him, to the plaintiff’s assignor, of money, at different times, which should be credited to him.
    Appeal by the defendant, Charles H. Hill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eulton on the 25th day of June, 1895, upon the report of a referee.
    
      
      Clark L. Jordan and John L. Hill, for the appellant.
    
      William Green, for the respondent.
   Herrick, J. :

This is an appeal from a judgment against the defendant, entered upon the report of a referee, for the sum of $229, and interest thereon from the 22d of May, 1891, with costs and disbursements of the action.

The plaintiff alleges that on or about the 17th day of April, 1894, for a good consideration, one Hervey Ross, sold, assigned and set over to him an account then held by said Ross against the defendant. Then follows an itemized statement of the account, and an allegation that the plaintiff is the lawful owner and holder of said account. The plaintiff then proceeds to take up each item of the account and state what it is for. The account shows one payment of twenty-five dollars ; then follows a statement that there is now justly and fully due from the defendant to the plaintiff the sum of $229, and interest thereon from the 17th day of April, 1891.

The defendant in his answer, amongst other things, denies that, at the time set forth in the complaint as the time of the transfer of said account, the defendant was indebted to the said Hervey Ross in any sum whatever. And for a third answer the defendant alleges, That prior to the time of the alleged and pretended transfer of the alleged and pretended claim set forth in the plaintiff’s complaint, this defendant had fully paid and satisfied one and all claims against him by the said Hervey Ross. And at the time of said alleged and pretended transfer the defendant was not, and has not since been, indebted to the said Hervey Ross in any sum whatever.”

For a further answer, the defendant also alleged that he and the said Hervey Ross had theretofore been co-partners in business, and that on the 4th day of May, 1894, the said Ross and defendant had had a full and complete settlement of all their accounts and had dissolved their co-partnership relations, and that at that time he had no knowledge of the alleged assignment by Ross to the plaintiff, and that plaintiff was present at the settlement of such co-partnership affairs and participated therein.

Upon the trial it appeared that Ross had been conducting a newspaper business, and that some years prior to the transactions in question he had sold out a half interest therein to the defendant, and that they thereupon became partners. With the exception of the sum of fifty dollars, claimed to have been loaned by Ross to the defendant, the other items in the assigned account purport to be, one for the unpaid balance of the purchase price of Ross’ one-half interest in the newspaper business, and the other the defendant’s share of the purchase price of a -stock of paper bought at the time they went into partnership.

Upon the trial the written instrument of dissolution and settlement between Ross and the defendant was offered and received in evidence, wherein appears the following clause: “ Third. In consideration of the premises it is mutually agreed by said parties that the co-partnership heretofore existing between them under the firm name of Ross & Hill is hereby dissolved, and that all its affairs as between themselves are fully settled and adjusted.”

The case was tried on the part of the plaintiff, and the referee seems to have acceded to that view of the case, upon the theory that this settlement only referred to the co-partnership affairs, and that the account in question had no relation to the co-partnership business, but was a personal and individual business, outside of the co-partnership and its affairs. Upon the examination of Ross it appeared that the defendant on several occasions had given Ross his checks, one being for the sum of $200. The question was then asked, Did you ever pay it ? ” This was objected to by the plaintiff as irrelevant, incompetent and outside of the pleadings. The objection was sustained, to which the defendant excepted. The question was then asked, “ Is it not a fact that after the formation of your co-partnership, and prior to its dissolution, that Mr. Hill advanced money to you in excess of amounts advanced by you?” This was also objected to on the same grounds. The objection was sustained, to which the defendant.excepted.

Upon the defendant’s examination the defendant was asked this question, “ Did you advance money to the concern for Mr. Ross ? ” which was objected to and excluded.

It seems to me that the rejection of this evidence by the referee was error. The plaintiff in his complaint alleges the transfer to him of an account; his complaint is upon an account, upon which he alleges there is a balance due from the defendant. The defendant, as I have before stated,' in his answer denies that at the time of the assignment he was indebted to Ross in any sum whatever, and further affirmatively answers that before such asssignment he had fully paid and satisfied one and all claims held against him by Ross.

It seems to me, therefore, that under these allegations in the complaint, and in the answer, the defendant had a right to show the-advances made by him to Ross of moneys at different times, which should be applied on the credit side of the account complained upon. (Quin v. Lloyd, 41 N. Y. 349; Booth v. Powers, 56 id. 22; Goodale v. Cent. Nat. Bank, 16 Wkly. Dig. 364.)

For these errors the judgment should be reversed, the referee-discharged and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed, referee discharged and a new trial granted,, costs to abide the event.  