
    The Strobel & Wilken Company, Respondent, v. Max Wiesen, Appellant.
    First Department,
    April 7, 1911.
    Practice — defect of parties — waiver — evidence — principal and surety -r-declarations of principal—when no waiver of exception.
    A defect of parties defendant is waived if objection be not taken by answer or demurrer.
    Declarations of a principal debtor as to the amount due after the conclusion of the business between him and his creditor and not part of the res gesta; are inadmissible in an action against his surety who was not present at the time. .
    The surety by moving at the close of the ease for the direction of a verdict . does not’waive his exception to the improper admission of such evidence.
    Appeal by the defendant, Max Wiesen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Mew York on the 20th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Sthday of June, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Emanuel J. Myers, for the appellant.
    
      Frederick Hemley, for the respondent.
   Soott, J.:

Appeal from a judgment upon a verdict directed in favor of plaintiff, and an order denying motion for a new trial. Defendant was sued upon a guaranty of' payment in the following form:

“Philadelphia, Pa., 2/19/1903.

“The Strobel & Wilicer Co.,

1 “Mew York City:

“Gentlemen.— In consideration of your shipping to Mess. Milgraum & Ost, of Philadelphia, the goods ordered by them amounting to about four thousand dollars ($4,000.00), we hereby guarantee to you the payment of same when due.

“Yours truly,

“ WIESEM BROS.

Per Max Wieser.” (Witness: E. C. Mueller.

The complaint allegés the defendant was a member of the firm of Wiesen Bros! It was urged on the trial, ' and is now. urged on appeal), that this action will not lie against defendant, because the guaranty did not purport to be his individual guaranty, tjut that of the firm, and that there was, therefore, a non-joinder of parties defendant, in that all the members of the firm should have been sued. ' The objection would not be without force if it had been taken in time. But it was not. It is one which should have been taken by answer or-demurrer, and, not having been so taken, is deemed to have been waived. (Code Civ. Proc. §§ 488, 498, 499; Seligman v. Friedlander, 199 N. Y. 373; Jones v. Gould, 200 id. 18.) A inore serious objection jto the judgment relates to the- nature of the evidence permitted to be introduced by plaintiff. The action was for a balance claimed to be due for goods sold to the firm whose account was guaranteed after the deduction of certain payments. In dence as to the deliver) addition to some not very precise eviof the goods and the partial payments, an employee of the plaintiff was permitted to testify tó certain statements and admissions made to. him by the principal, in the absence of defendant, respecting the amount due from the firm whosé payments were guaranteed. The reception of this evidence was duly objected to, and it was received under defendant’s exception. A subsequent. motion to strike it out was denied and an exception taken. There can be no doubt that the reception of this evidence constituted error. The statements made by Milgraum and Ost were not part of the res gestee, having been made after the conclusion of the business between plaintiffs and the principal debtors. Under.such circumstances admissions and statements by the principal, however formally, or specifically made, are not competent proof against the surety. . (Hatch v. Elkins, 65 N. Y. 489.) It cannot be said that this- proof did not influence the verdict, for without it there was njo evidence of the amount due. The respondent urges that appellant waived his exception by moving, at the close of the case; for the direction of a verdicti This . is clearly untenable. By moving for a direction the appellant conceded that upon the evidence, as it stood, there was no question of fact for the jury, but this did not preclude him from insisting, upon appeal, that the evidence to which he had objected had been improperly admitted. It follows that the j'udgment and- order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarice and Dowling, JJ., concurred.

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