
    William Glickman, Respondent, v. William L. Loew, Appellant.
    (City Court of New York, General Term,
    May, 1897.)
    Evidence — Payment.
    In an action upon, a building contract and for extra work, the defendant cannot be permitted to testify as to the total amount paid by him on account of the work, where there is no plea of payment.
    Appeal-from a judgment entered upon a verdict in favor of the plaintiff and against the defendant and from an order denying the motion of the'defendant, for a new trial.
    Lewis Johnston, for appellant.
    E. I. Yuells, for respondent.
   O’Dwyer, J.

This action was brought to recover the balance of the sum of $500, due upon an express contract for painting work and material furnished upon a hotel at Seabright, Hew Jersey, and also the sum of $238 for extra work and materials.

The answer admits the written contract but alleges that! the plaintiff did not perform the contracts set forth in the complaint.

. Upon, the trial the plaintiff testified that he completed the work that he gave an estimate for and used the materials mentioned in the estimate; that while this work was going on the defendant ordered him to do certain extra work; that no price was fixed for the extra work; that he completed the same and that the reasonable value thereof was the sum of $238; that all the work amounted to the sum of $738; that a portion thereof was paid and that the balance due was $415.96.' .

Evidence for the defense was introduced to' show that the materials mentioned in the estimate were not used, but inferior materials, and also that instead of two coats one coat of paint was used in some places, and that the plaintiff agreed to do the' extra work for the sum of $115.

The plaintiff and his witnesses asserted that the proper materials were used> the proper coats of paint, put on, and that no price was , agreed upon for the extra work, and the conflict arising between the parties — in a charge by the learned trial judge which was hot excepted to —was submitted to the jury for their determination,. and we cannot say that their verdict is against the'preponderance, of evidence.

On the trial the defendant was asked, in his direct examination, the following question:

“ Q. How much money have you paid in all, bn account of this work, to the plaintiff? ”

Plaintiff’s counsel objected upon the ground that there was no plea of payment in the answer. Defendant’s counsel answered: “That.is so;” whereupon the objection was sustained and the defendant excepted. .

This proof could not be admitted without the plea of payment, and as there was no such plea the trial judge was right in sustaining the objection. McKyring v. Bull, 16 N. Y. 297; Quinn v. Lloyd, 41 id. 349; Cochran v. Reich, 91 Hun, 440.

Ho other exception appearing in the case, it follows that the judgment and order appealed from should be affirmed, with costs.

Coulax, J., concurs.

Judgment and order affirmed, with costs.  