
    Jacob Rauth, Respondent, v. Jacob Scheer, Appellant.
    (City Court of New York, General Term,
    July, 1897.)
    Payment — Evidence — Direction of verdict for the plaintiff — Exception.
    Where an action for goods sold is defended upon the ground of pay- ' ment, and also separately upon the ground of payment by the notes of third parties, and the defendant, although by order precluded from giving evidence in regard to the defense of payment by the notes of third parties, because of his failure to comply with a bill of particulars" ordered in regard to that defense, gives some evidence- of payment, it is erroneous for the court to order a verdict in favor of the plaintiff; and where an exception is taken to the direction of the court, there must be a new trial in order that the jury may pass upon the question whether the defendant gave any sufficient. evidence of payment under his first defense.
    Appeal from a judgment in favor of plaintiff, entered on a verdict by direction of the court.
    L. S. Finn, for appellant.
    Franklin Bien, for respondent.
   Schuchman, J.

This is an appeal from a judgment entered on a verdict of a jury by direction of the court.

The action -was brought to recover the sum of $1,750, less $50 paid on account thereof, for goods sold and delivered by one Eyonce Banger, the plaintiff’s assignor, to the defendant.

The answer does not deny the sale and delivery, but pleads as a defense, first, payment, and, second, payment by notes of third parties.

A bill of particulars was ordered in regard to the second defense of payment, to-wit, the notes of third parties.

The order was not complied with, and an order was made precluding the defendant from giving any evidence in regard to the defense of payment by the notes, of third parties..

The court, by directing a verdict in favor of the plaintiff, and against the defendant, adjudged that there-was no conflict of evidence in the case, and no question of fact to be submitted to the jury, and although the defendant’s attorneys requested to go to the jiu'y on the question of payment, the motion was denied, and no exception taken thereto,; still we hold that on an- exception ' taken to the direction of the court to the jury to find a verdict for the plaintiff, the question is raised, whether there is any question to be submitted to the jury on conflicting evidence.

Although the second defense of payment by means of notes of third parties had been eliminated from the.defense, still the general defense of payment remained pleaded in the answer, and the defendant'had a right to give evidence thereunder. Such evidence was given and the defendant and one disinterested witness, Louis Bernay, testified that the plaintiff’s assignor, Mr. Langer, in a conversation had, stated that there was only $70 due from the defendant to the said Langer, and although the evidence of payment "on behalf of the defense is somewhat muddled, evasive and not satisfactory, we conclude that -there was sufficient to. submit the question of payment to the jury.

Judgment appealed from reversed and new trial granted, with' costs to the appellant to abide the event.

McCarthy, J., concurs.-

Judgment reversed and new trial granted, with "costs to appellant to abide the event.  