
    Fannie Guzick, Respondent, v. Nathan Ressler, Appellant.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Evidence — Weight and sufficiency — What evidence may be considered.
    Money paid — Burden of proof.
    Where, in an action against the maker of a promissory note, he pleads as a counterclaim the amount paid to plaintiff’s creditors with her consent and demands judgment thereon in excess of the amount of the note, the burden of proof as to plaintiff’s consent to such payment is upon the defendant.
    Where, without objection, the court considered a stipulation by defendant’s" counsel which had not been formally offered in evidence and marked as an exhibit, and, upon defendant’s offering to prove by plaintiff’s creditors the payment by defendant of the debts due to them and when the testimony was objected to as being contrary to the stipulation, counsel then stated that if the evidence was objected to he would leave it out, and, further, that in view of the stipulation he presumed the court would not permit proof of facts contrary thereto but took an exception to the exclusion oí the proof, a judgment in plaintiff’s favor will not be reversed because the court below considered the stipulation without its having been marked as an exhibit in the case.
    Appeal by the defendant from a judgment of the City Court of the city of Bew York, entered in favor of the plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.
    H. & J. J. Lesser (Abraham Oberstein, of counsel), for appellant.
    Abraham H. Sarasohn, for respondent.
   Seabury, J.

This is an action upon a promissory note made and delivered by the defendant to the plaintiff. The defendant pleaded as a counterclaim that payment was made on behalf of the plaintiff to creditors of the latter in excess of the amount- of the note and demanded judgment for $127, the alleged amount of the payments in excess of .the amount of the note. The defendant, who had resting upon him the burden of proof, testified that such payments were made with the consent of the plaintiff and her husband. This testimony was directly contradicted by the plaintiff and her husband. The only question submitted to the jury was this issue of fact. USTo exception was taken to the charge of the court, and the only question of importance presented by this appeal is whether effect is to be given to a stipulation which was signed by the attorneys for the defendant but which the record does not show was formally offered in evidence and marked as an exhibit in the case. In corroboration of his claim, the defendant attempted to prove by creditors of the plaintiff the debts which were due them which he had paid. This testimony was objected to on the ground that it was contrary to the stipulation of the defendant, and the record shows that the stipulation was handed to the court. This stipulation which was signed by the attorneys for the defendant provides that the defendant will not prove or attempt to prove “that any indebtedness existed in favor of the various persons to whom said payments were made, against the plaintiff, or the nature of such indebtedness or, if any indebtedness existed, how the same was created, or that a cause of action existed of any nature or description m favor of the said persons to whom payments were made against the plaintiff in this action.”

After some discussion as to whether the testimony offered should be received, the court said: “ That is the very thing you stipulated you would not attempt to prove on this trial.” To this remark the defendant’s counsel replied: “All right, if that is objected to, I will leave that out.” Defendant’s counsel then called another witness and, after asking him his name, said: “I will say this, your Honor, that all our

witnesses will similarly testify to the fact that those were goods sold by them and delivered to the place of business of Fannie Guzick, and that the amount in question as set forth in the bill of particulars was paid by Bessler for these goods, and that the amount in question represents goods sold to Fannie Guzick. If your Honor is going to make the same ruling, why I might just as well save the trouble of calling these different people. However, I will make the offer of this proof, and in view of the stipulation I presume your Honor will hold that we are not permitted to prove that.” The court indicated that it would so rule and the defendant excepted.

It is now very earnestly urged that the learned court below erred in giving effect to this stipulation. It is true that the record does not show that it was formally "offered in evidence and marked as an exhibit. It does appear, however, that it was handed to the court, that it was considered by the court, and that no objection was made to its consideration. Indeed the counsel for the defendant seemed to recognize that it was properly before the court, and it was treated by him as if it had been formally marked in evidence. When the evidence he offered was first objected to as contrary to the stipulation, he treated the stipulation as binding upon defendant when he said: “All right, if that is objected to, I will leave that out.” Later he recognized that, as the stipulation was before the court and as the court had ruled that effect should be given it, it would be useless to offer other evidence which was contrary to its terms. His own statement, made after his offer of proof, that, “in view of the stipulation, I presume your Honor will hold that we are not permitted to prove that,” shows conclusively that the case was tried upon the theory that the stipulation was before the court. While the defendant’s counsel excepted to the ruling refusing the proof that was offered, it is significant that neither before nor after this ruling did counsel for the defendant even question the propriety of receiving the stipulation or claim that it was not properly before the court. In view of the attitude of the court and counsel for both parties toward this stipulation, we think it would be stretching technicality to the border of absurdity -to reverse this judgment solely because the stenographer did not mark this stipulation as an exhibit in the case. In fact it was such an exhibit and was so treated by all concerned in the trial. The stipulation in the record is sufficiently identified as the stipulation referred to in the evidence.

Guy and Bijur, JJ., concur.

Judgment affirmed, with costs.  