
    The Hong Kong & Shanghai Banking Corporation, Resp’t, v. Joseph M. Emanuel, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Bills and notes—Evidence.
    The drawer and indorser of a draft drawn against a consignment of oil, and endorsed for value to a third person, gave the consignee authority to sell the oil and apply the proceeds to the payment of the draft. In an action by the endorsee to recover a balance due on the draft, Held, that the court properly admitted in evidence, on plaintiff’s behalf, the account of sales submitted to him by the consignee, showing the existence of the balance in question.
    2. Pleading—Amendment—New defense.
    The court properly refused to allow the defendant to amend his answer so as to plead payment, as it would have been setting up a new defense.
    Appeal from a judgment entered upon a verdict directed in favor of the plaintiff, and from an order denying a motion for a new trial.
    
      Sol. Kohn, for app’lts; Amasa A. Bedfield, for resp’t
   Lawrence, J.

Under the pleadings in this case, as the evidence stood at the close of the trial, there was, in our opinion, nothing to go to the jury. The difficulty which was claimed to have existed on the former trial, on account of the refusal of the learned justice to submit to the jury the question whether the defendant Emanuel had given the firm of Meyer & Co. authority to sell the oil against which the draft was drawn, as the agents of the defendants, and to apply the proceeds to the payment df the draft, has now been removed, as it distinctly appeared on the trial which resulted in the judgment from which this appeal is taken, both by the evidence of the defendant Meyer and of the defendant Emanuel, that it was part of the agreement between the maker and endorser of the draft that Meyer & Co. should sell the oil, and that the proceeds should be paid to the plaintiff on account of the draft. Hong Kong & Shanghai Banking Corporation v. Emanuel, 36 St. Rep., 718.

This being the case, it seems most clear that the account of sales submitted by Meyer & Co., who were the defendants’ agents, were admissible in evidence against the defendant Emanuel, and that they were binding on him. There was also no error, in our opinion, committed b^ the learned justice in refusing to allow the defendant to amend his answer so as to plead payment.

To have permitted such an amendment would have been to have allowed the defendant to set up an entirely new defense, for which, even if the court had power to grant it, the evidence in the case offered no jurisdiction. Price v. Brown, 98 N. Y., 388.

The endorsement of the bill, “ Beceived payment for the Hong Kong & Shanghai Banking Corporation, Harold Yacher, Agent,” upon the evidence amounted merely to an acknowledgment that there had been received in payment upon the bill the amount for which the oil had been sold, being the amount for which credit was allowed under the allegations of the complaint. Neither did the justice who tried the cause err in refusing to allow the defendant to go to the jury upon the several questions stated at page 40 of the case.

There could be, on the evidence, no question that the oil had been sold, nor as to the fact that there had been an account of sales rendered to the' defendant Emanuel by his agents Meyer & Co. There was no proof before the court of any payment of the draft beyond that which the plaintiff had established by putting the endorsement upon the draft in evidence. There was no plea of payment by the defendants, nor was there any evidence of negligence on the part of the plaintiff to submit to the jury.

Upon the record, we are of the opinion, therefore, that if the defendant had been allowed to go to the jury upon either of the questions submitted by his counsel, and a verdict had been rendered in his favor, the court would have been compelled to set it aside. Dwight v. Germania Life Ins. Co., 103 N. Y., 341-358; 3 St. Rep., 115; Kelly v. Burroughs, 102 N. Y., 93; 1 St. Rep., 161; Cagger v. Lansing, 64 N. Y., 427.

The judgment and order below must, therefore, be affirmed, with costs and disbursements.

Yah Brunt, P. J., and O’Brien, J., concur.  