
    (81 Hun. 160.)
    WOODWARD et al. v. REMMINGTON.
    (Supreme Court, General Term, Fifth Department.
    October 17, 1894.)
    1. Evidence—Books op Account.
    Where plaintiff, in an action for the price of goods sold, testifies that defendant requested him to let one P. have the goods, and that he (defendant) would pay for them, and requested monthly statements, plaintiff’s books of account, and the fact that statements were sent to defendant, are admissible to prove that the goods were sold on defendant’s credit.
    2. Appeal—Harmless Error.
    In such case, permitting plaintiffs to testify that he furnished the goods by reason of the conversation with defendant, though erroneous, in that the question was one for the referee to determine, is harmless error, because, if the referee believed plaintiff’s evidence, the conclusion would follow that the goods were furnished pursuant to the request.
    Appeal from judgment on report of referee.
    Action by George D. Woodward and others against Herman E. Eemmington to recover for goods sold and delivered. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BEADLEY, JJ.
    Carey D. Davie, for appellant.
    Hudson Ansley, for respondents.
   BRADLEY, J.

The action was brought to recover for goods delivered by the plaintiffs at their store at Red House, in the county of Cattaraugus, to Prank Phillips, and alleged to have been sold to the defendant. There is no controversy about the fact that the goods were furnished to Phillips, but the facts upon which the plaintiffs seek to charge the defendant with liability to pay for them are controverted. The goods in question were furnished to Phillips after he had undertaken to perform a job of work for the defendant. And the evidence on the part of the plaintiffs is to the effect that defendant called at plaintiffs’ store, and there, in an interview with one of them, said that Phillips was jobbing for him, and requested them to let him have what goods he wanted, and he (defendant) would pay for them at the end of each month, and requested that monthly statements be sent to him. The defendant, by his testimony, denies that, he gave any such order or made such promise or request. The question was one of fact for the referee, and his finding in that respect is supported by evidence. The plaintiffs’ clerk who kept the books and entered the account produced the books, and one page of the ledger was offered in evidence to show that the account was charged to the defendant. This was received after objection, and exception taken. The same witness, after testifying that he mailed to the defendant statements of the account, was asked how those statements were made out, and, after exception taken to the reception of the evidence, he answered that they were made out to the defendant. After the evidence tending to prove that the plaintiffs were authorized to furnish goods to Phillips upon the credit of the defendant, it was competent for them to prove that they did so, and this might be made to appear by the fact that the account as entered was debited to him, and that the statements were made out in like manner. The defendant testified that he never received or had any such' statements, so that a notice to him to produce them would have been futile. The evidence of the book and statements was not offered to prove the account, but only to show that it was opened upon the credit of the defendant. In that view the evidence was competent, and there was no error in its reception. The plaintiff who testified that the defendant requested them to furnish goods to Phillips, as before mentioned, was asked whether the goods were furnished to Phillips by reason of that conversation, and, after exception was taken to the ruling permitting it, the witness answered in .the affirmative. This was a question for the referee to determine upon the facts, and was not properly a subject for the expression by the witness of his conclusion. Merritt v. Briggs, 57 N. Y. 651; Pope v. McGill, 58 Hun, 294, 12 N. Y. Supp. 306. But the defendant could not have been prejudiced by that evidence. If the referee believed the evidence on the part of the plaintiffs that the request and promise of the defendant were made as their witnesses testified, in view of the fact that the account was entered in the book as upon the order of the defendant, the conclusion would necessarily follow that the goods were furnished pursuant to such request and promise. The referee did treat the fact as truly represented by that evidence, and found accordingly. There seems to have been no error in the rulings at the trial to the prejudice of the defendant. The judgment should be affirmed. All concur.  