
    McKEAN v. SCOTT.
    (Supreme Court, Appellate Term.
    November 6, 1903.)
    1. Appeal—Questions Review able—Defenses not Pleaded.
    The defense of payment, when not pleaded, cannot be considered on appeal.
    Appeal from City Court of New York.
    Action by William B. McKean against Xenophon C. Scott. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. '
    Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
    Pinney, Travers & Van Slyke, for appellant.
    P. Q. Eckerson, for respondent.
   BLANCHARD, J.

The allegation in the complaint to the effect that at the time of the employment the defendant was engaged in business under the name of Yardum & Co. is not material, since it is merely a statement that the defendant, as an individual, was carrying on business under that name. The complaint, without this allegation, states a cause of action against the defendant. It is true that, while the evidence does not connect the defendant with Yardum & Co. as an actual member of that firm, it does show conclusively that he was financially largely interested in its affairs, having loaned the firm, in which his sister was the silent partner, large sums of money, and that other members of his father’s estate have done the same. It is clear that the plaintiff regarded the defendant as the real representative of the firm, and his mistake in that regard was, under the circumstances disclosed by the evidence, but natural. The employment of the plaintiff appears to have been advised by Mr. Parmele, a friend of the defendant, and the defendant approved and ratified his employment. To Mr. Parmele the defendant gave particular directions as to how he desired the plaintiff to proceed in investigating the books of Yardum & Co. The question whether or not the plaintiff was employed by the defendant was fairly raised by the evidence, and was properly submitted to the jury. The claim of the defendant that the plaintiff was paid in full when he accepted the note of A. Yardum & Co. cannot be considered here, as the defense of payment was not pleaded. McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Hughes v. Cuming, 36 App. Div. 302, 55 N. Y. Supp. 256.

The judgment and order must be affirmed, with costs. All concur.  