
    Samuel Goldberger, as Sole Surviving Partner of H. Koehler & Co., Respondent, v. Essie M. Gallagher, Appellant.
    (City Court of New York — General Term,
    February, 1895.)
    Where the answer fails to deny the delivery óf the goods as alleged in the complaint, such delivery is admitted and-need-not be proved.
    An action may be abandoned and discontinued -by express agreement of the parties ; entry of a formal order of discontinuance is not necessary.
    Where the answer admits the making of. the agreement sued upon and defendant’s testimony shows that she refused to carry it out unless she received a receipt for moneys paid thereon, a direction.of a verdict for the plaintiff is proper.
    Appeal from a judgment in favor of the .plaintiff.
    
      Charles A. Flammer, for appellant.
    
      Hahn c& Myers, for respondent.
   Fitzsimons, J.

The complaint alleges delivery of the goods in question; the answer by not denying that material allegation admitted it, -so it was not necessary for the plaintiff -to have proven delivery.

Defendant’s plea of former action pending was not ‘sustained by. any of the testimony submitted. In fact, the‘testimony of even defendant shows that the action referred to was abandoned and discontinued by express agreement of the parties .thereto; a formal order of discontinuance entered and’filed in the court where said action was pending, while advisable, was not necessary.

The answer of the defendant certainly admitted an indebtedness of $125 under the agreement mentioned in paragraph 111 of the answer, providing the .jury believed that she refused to .carry out said agreement unless she received a receipt for the money paid plaintiff under such agreement ; they evidently believed that to be so; they could not well do Otherwise, because the defendant so testified. Therefore, under-her answer, as before shown, she having admitted the making of tlie agreement and her testimony showing that she refused to carry out the terms of said agreement (except to the extent of twenty-five dollars) unless plaintiff gave her a receipt for money paid (something she was not in law entitled to as a matter of right), is in law an admission of her indebtedness to the extent of $125, and, therefore, the trial justice was right in directing the jury to find a verdict for plaintiff for at least that amount.

These are the only points raised by the appellant’s counsel, and, as we have pointed out, they are, in our judgment, without legal merit.

We have examined the appeal record to find out whether or not any error was made, and finding none the judgment must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.

Judgment affirmed, with costs.  