
    BETHUEL C. WHEELER and HORACE INGERSOLL, Appellants, v. WILLIAM S. SEE, Respondent.
    
      Evidence, admitted without objection—when not struck out.
    
    Appeal from a judgment, entered upon the report of a referee. The plaintiffs sued to recover a balance due for feed alleged to have been sold by them to one William H. Mapes. The answer was a general denial.
    The theory of the prosecution was that Mapes was defendant’s agent in conducting a livery stable business in New York city, and that the sales were really upon the credit of the latter. The opinion of the court was principally devoted to an examination of the evidence in the case. The only question of law in the case was one relating to the striking out of certain rebutting testimony given on the part of the plaintiffs, which it was claimed was' not in rebuttal of the defendant’s evidence, and should therefore have been given on the examination in chief; the court at General Term held, that when evidence pertinent to the issue was thus admitted without objection, it should not be stricken out although the enforcement of the strict rule regarding evidence in rebuttal might have prevented its being admitted.
    
      John B. Perry and W. W. Niles, for the appellants.
    
      David Thornton, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and a new trial ordered, costs to abide the event.  