
    Gertrude C. V. Uhlhorn, Appellant, v. Edwin J. Hovey, Respondent.
    Pleading — Variance between allegations in pleadings and proof — Defenses or counterclaims — Proof inadmissible under general denial.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, Sixth District, borough of Manhattan.
    Davies, Stone & Auerbach (Julien T. Davies, Jr., and Ward W. Pickard, of counsel), for appellant.
    Frederick L. Durland, for respondent.
   Scott, J.

The action was upon an account stated, the defense a general denial. The only issue presented was as to whether or not there had been an account stated. Unquestionably there had been as to a certain sum of money paid to defendant by plaintiff to be expended for certain purposes. There is no attempt to avoid the account, or to show that it was induced by fraud, or made by mistake. The defendant was, however, permitted, under his general denial, to introduce evidence which, as he claimed, showed that plaintiff was indebted to him for matters altogether outside the matter embraced in the account. This, of course, he should not have been permitted to do. Such proof cannot be received in support of a general denial in an action upon an account stated.

Giegerich and Gbeenbattm, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  