
    Wegener v. Butler.
    (City Court of New York
    General Term,
    March, 1893.)
    Plaintiff sued for work claimed to have been performed under a certain written contract; defendant denied this and claimed that it was done under a written contract, which he ofEered in evidence, but it was excluded and plaintiff had a verdict. Held, error; both instruments should have been submitted to the jury and it was for them to determine which constituted the contract between the parties.
    Appeal from a judgment in favor of plaintiff entered on the verdict of a jury. The opinion states the case.
    
      A. G. Yonderjpoel, for defendant (appellant).
    
      William F. Browne, for plaintiff (respondent).
   Fitzsimons, J.

This is an action for services rendered and materials furnished under a written contract and for extra work and materials. The complainant relies upon a written contract, which he annexes to his complaint. The defendant’s answer, among other defenses, alleges that the contract set out by plaintiff is not the one actually made, but that another and different contract was entered into and which was not performed by plaintiff.

Testimony was submitted by plaintiff tending to show that the contract depended upon by him was the contract made, and that its terms were substantially complied with. Defendant, on his part, offered in evidence the contract which he contended was the one entered into, and it was excluded by the trial justice. Certainly the first question for the jury to determine under the issue herein, was: What was the contract made between the parties hereto ; was it the one in evidence submitted by plaintiff or the one offered by defendant ? To enable them to determine that question both instruments should have been submitted to them, and it then would become their duty to determine under the evidence which one constituted the contract made. Therefore, the exclusion of the written instrument offered by defendant was error, and for that reason the judgment herein must be reversed, with costs to appellant to abide event of action and a new trial is ordered.

Ehblioh, Ch. J., concurs.

Judgment reversed, new trial ordered.  