
    Leman C. Miner, Jr., Resp’t, v. Bernhard Baron et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Pleading—Amendment on tbial.
    It is not error to refuse to allow an amendment to an answer by striking out an admission of an allegation of the complaint after plaintiff has closed his case.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover damages for an alleged breach of contract.
    The complaint alleged an agreement by which plaintiff gave to defendants the exclusive right to manufacture and sell his patented cigar perforators for three months, with the right to purchase the patent at the end of that period or to take an exclusive right to manufacture and sell the same on their guaranteeing to manufacture and sell at least 13,000 within three years and pay a royalty thereon ; that defendants elected to take such exclusive right j that thereafter the agreement was modified so that plaintiff should have the right to sell to others than defendants and the latter should during the year manufacture not less than 4,000 and pay royalty thereon; that they manufactured and took only 200. The answer admitted the making of the first agreement and the allegation as to the election, but alleged that the contract had been cancelled.
    At the close of plaintiff’s case defendants moved to amend the answer by striking out the admission as to the election, which motion was denied.
    
      Leopold Wallach, for app’lts ; Carpenter & Roderick, for resp’t.
   Dykman, J.

—This is an appeal from a judgment entered upon a verdict and from an order denying a motion for a .new trial upon the minutes of the court

The action was for the recovery of the amount due upon a contract, and the only question of fact involved was whether the original contract had been modified in the manner claimed by the plaintiff or as insisted by the defendants. That question was fairly submitted to the jury and the verdict was for the" plaintiff.

The testimony was contradictory, and we must assume now in view of the verdict that the jury found the facts according to the plaintiff’s testimony and insistence, and that was sufficient to sustain the verdict In our view the evidence introduced by the plaintiff was quite preponderating.

It was not erroneous to deny the motion of the defendants to amend their answer upon the trial and we find no error in the record.

The judgment and order should be affirmed, with costs. Barnard, P. J., and Pratt, J., concur.  