
    Theodore Wegener, Resp’t, v. James H. Butler, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed March 17, 1893.)
    
    Contbact — Evidence.
    Where the answer in an action upon contract alleges that the one set out in the complaint is not the one actually made, hut that another and different one was entered into and which was not performed, the question as to which was the contract actually made is one for the jury, and it is error to exclude the written contract offered in evidence hy defendant.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      A. G. Vanderpoel, for app’lt; William F. Browne, for resp’t.
   Fitzsimons, J.

This is an action for services rendered and materials furnished under a written contract, and for extra work and materials.

The complainant relies upon a written contract, which he 'annexes to his complaint

The defendant’s answer, among other defenses, alleges that the contract set out by plaintiff is not the one actually made, but that another and different contract was entered into, and which was not performed by plaintiff.

Testimony was submitted by plaintiff tending to show that the contract depended upon by him was the contract made, and that its terms were substantially complied with.

Defendant, on his part, offered in evidence the contract which he contended was the one entered into, and it was excluded by the trial justice.

Certainly, the first question for the jury to determine under the issue herein was:

What was the contract made between the parties hereto ? Was it the one in evidence submitted by plaintiff, or the one offered by defendant ?

To enable them to determine that question both instruments should have been submitted to them, and it then would become their duty to determine under the evidence which one constituted the contract made.

Therefore, the exclusion of the written instrument offered by defendant was error, and for that reason the judgment herein must be reversed, with costs to appellant to abide event of action, and a new trial is ordered.

Ehrlich, Oh. J., concurs.  