
    Isaac Blumberg, Appellant, v. Barnett Bezozi, Respondent.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Evidence — Contradiction of claim.
    Where a counterclaim is based upon an alleged agreement of plaintiff, in order to prevent an action to set aside an assignment to him, to pay the balance due upon notes of his assignor after deducting the value of goods surrendered by plaintiff, the latter is entitled, on cross-examination of the defendant, to show that subsequent to such alleged agreement he deposited the notes in bank for collection. ■ Blumberg v. Bezozi, 19 Mise. Rep. 424, reversed.'
    Appeal from affirmance by-the General Term of the City Court óf Hew Tork of a judgment entered upon the verdict of a jury in favor of the defendant.
    Abraham S. Levy, for appellant.
    Chas. G. F. Wahle, for respondent.
   Bischoff, J.

This case involved an issue of fact upon evidence of a most conflicting character, and the matter having been eoncededly one calling for the determination of the jury, our attention is directed by the appellant only to certain exceptions taken to rulings upon evidence, and in one instance to a refusal to charge.

We have examined these exceptions, and, were it not for the apparent validity of one which we shall discuss, the judgment could be given support since, except in this one instance, the rulings were not made to appear the subject of reversible error, in view of the state of the record as to the manner in which some of the exceptions were taken and as to the propriety of others.

The action was for goods sold and delivered and the issue had to do solely with the facts surrounding the delivery, which was hot in itself disputed.

In his answer the defendant showed that one Simon had received certain moneys from him upon three promissory notes which he (defendant) had discounted, these notes maturing, respectively, July 29, 1895, August 27, 1895, and August 80, 1895, and the ■ aggregate of the indebtedness being $1,333. Informed that Simon was fraudulently disposing of his property, he came to him and demanded the payment of the notes, the words of the answer being that he “ tendered said notes and declared to him that he, the defendant, rescinded the agreement between them made and demanded the payment due thereon/’ ■

It was further alleged that the defendant was informed of the fact that an assigmnent had been made by Simon to Blumberg, the plaintiff, of all his (Simon’s) goods, and that Blumberg, in view of the defendant’s assertion that he would otherwise bring an action to have the assignment or transfer set aside, delivered the goods in suit and promised, personally, to' pay the difference between the value of these goods and the amount of Simon’s indebtedness to the defendant upon the notes. The delivery of the goods and the surrounding matters, as alleged, took place upon the 17th of June, 1895.

Blumberg’s promise to pay the balance thus taken as being due the defendant was made the basis of a counterclaim, and, a reply being served which accomplished no more than a denial of all the allegations of the counterclaim, the parties went to trial. This counterclaim was withheld from the jury because viewed as based upon u collateral guaranty of the debt of another. It clearly appears to us that the plaintiff’s alleged promise was an original undertaking, not within the Statute of Frauds, and, moreover, there was a failure to plead the statute by reply (Crane v. Powell, 139 N. Y. 379), or to object to evidence given in support of the promise, and while this apparent error was not to the appellant’s prejudice, the fact that this counterclaim was both pleaded and proven becomes to a certain degree material upon the one serious question which this appeal presents.

Upon cross-examination the defendant was asked: “ Q. Didn’t you, long after the 17th of June, deposit those notes in your bank? ” and the question was excluded under objection to its materiality and relevancy.

Wé think the plaintiff was entitled to an answer to this question, since the defendant’s dealings with these notes after the date of the alleged transaction with the plaintiff, which was claimed to have resulted in the payment or satisfaction of part of the indebtedness by the delivery of goods and the assumption by the plaintiff, of the remainder, had a direct and material bearing upon the truth of the defendant’s version of the circumstances surrounding the delivery of these goods, these circumstances being.the subject of the sole issue in the case.

In'view of the flat contradiction, by the plaintiff’s witnesses of every fact testified to.by the defendant as to the agreement Under which he claimed that these goods were delivered, the exclusion of any evidence which served to substantiate the story told for either side was necessarily prejudicial, and the testimony called for by the question now considered was certainly material as tending to show that the defendant’s treatment of these notes was inconsistent with his account, of the transaction in the course of which he received the goods.

TTis demand upon Simon for payment before the notes were due was consistent only with his repudiation of them because of Simon’s alleged fraud, and his acceptance of the goods in part satisfaction, together with his reliance upon the plaintiff’s assumption of the remainder of the indebtedness, was not well reconcilable with a subsequent attempt upon his part to collect upon the notes.

If it be said that the goods were received only upon account of an indebtedness represented , by the notes, the answer is that the defendant- came to trial alleging the plaintiff’s promise to pay the balance over and above the value of the goods, and this promise was made the.basis of his counterclaim, in support of which claim proof was fully adduced by him. ■

True, if he had accepted, the goods only upon account of Simon’s debt-, his future attempt to collect the notes, in so far as the balance of the indebtedness was in- question, might not have been material, but this was not the situation presented at the trial, where the defendant’s position was shown to be based upon an entire transaction, involving his expressed reliance upon Simon’s original indebtedness (as paid in part and assumed in part by the plaintiff), and if there was such a transaction and he relied upon it, his subsequent dealing with the notes to his intended advantage was a matter which touched the credibility of the account which he thus gave.

While perfectly consistent with the plaintiff’s, claim that the defendant’s possession of the goods was under an absolute contract of sale, this attempted collection of Simon’s indebtedness upon the notes was a circumstance in contradiction of the defendant’s story, and the jury should have had an opportunity of considering it, together with any explanation which might have been given of the fact:

The .error in the rejection of this evidence was at no time cured, and we must hold that the exception taken presents an unavoidable ground for reversal of the judgment.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. v

Daly, P. J., and McAdam, J., concur.

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