
    GREENBAUM v. GREENFIELD et al.
    (Supreme Court, Appellate Term.
    February 5, 1909.)
    1. Witnesses (§ 400)—Contradiction of Adverse Party Called as Witness-Statutory Provisions.
    Under Code Civ. Proc. § 838, providing that the testimony of a party, taken at the instance of the adverse party, may be rebutted by other evidence, plaintiff, by calling defendant to testify to a fact, was not concluded thereby, but could call other witnesses to establish the fact contrary to that testified to by defendant; the witnesses not being called to impeach, him.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1269; Dec. Dig. § 400.*]
    2. Sales (§ 358*) — Action fob Price — Admissibility of Evidence — Prior Transaction.
    In an action for the price of goods sold, where a defendant testified that when the order for the goods was given no sample was shown, but that the goods were to be the same as those formerly purchased from plaintiff, and plaintiff testified that the_ defendant stated when he gave the order that he wanted another lot of" goods the same as plaintiff had made the last time, evidence was admissible to show what kind of goods defendants had theretofore ordered and the price.
    [Ed. Note.—For other cases, see Sales, Dec. Dig. § 358.*]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Max Greenbaum against Jacob Greenfield and others. Judgment for plaintiff, and defendants appeal. Affirmed.
    Argued before GIEDERSEEEVE, P. J., and GIEGERICH and SEABURY, JJ.
    Leon Dashew, for appellants.
    Charles L. Greenthal, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r indexes
    
   GIEGERICH, J.

The action is to recover the agreed-price of goods sold and delivered by the plaintiff to the defendants. The answer contains a general denial, and sets up as a separate defense that the defendants ordered certain goods from the plaintiff, but that the latter did not deliver the kind of goods agreed upon.

The principal question litigated upon the trial wasi whether, as claimed by the defendants, they ordered imported laces'of a certain design, or whether, as contended for by the plaintiff, they ordered domestic laces to be manufactured according to that design. The trial justice resolved the conflict of testimony in the plaintiff’s favor, and such determination is amply supported by the evidence.

The defendants contend tlifit, as plaintiff called the defendant Greenfield as a witness in his behalf, he was concluded by his testimony, and could not call other witnesses to contradict him. Section 838 of the Code of Civil Procedure provides that:

“The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence.”

Since the other witnesses were called by the plaintiff for the purpose of establishing a particular fact contrary to that testified to by the said defendant, and not to impeach him, the former was not bound by his testimony. Ruhl v. Heintze, 97 App. Div. 442, 446, 89 N. Y. Supp. 1031, and citations.

The plaintiff, over the defendants’ objection and exception, was permitted to show a prior transaction between the parties litigant. Such evidence was properly received, in view of the testimony of the said defendant Greenfield that when the order in suit was given no sample was shown, but that the goods were to be the same as those purchased from the plaintiff when he was with the Co-operative Company, and in view of the further testimony of the plaintiff that the said defendant Greenfield stated to him, when he gave the order for the goods in question:

“I want you to make another lot of goods, the same as you made last.”

It was therefore relevant and material to ascertain just what kind of goods the defendants had theretofore ordered from the plaintiff, whether domestic or imported, and the price paid therefor.

The judgment should therefore be affirmed, with costs. All concur.  