
    Walker et al. v. Hubert.
    (New York Common Pleas—General Term,
    December, 1893.)
    Defendant testified that by agreement between plaintiff W., one F. and himself, plaintiffs hired an office in defendant’s building, and F. was to receive a commission of ten per cent on all orders for printing he could obtain for plaintiffs, and that said agreement was the consideration of defendant’s entering into the contract for printing for which this action is brought. F. testified to the same effect, and that his commissions were to be applied to the last payments of defendant’s contract, and that he was not to receive any cash. The court struck out F.’s testimony on the ground that it contradicted the terms of the written contract, which provided that payments were to be made by defendant promptly as the printing was used. Held, that as, unless defendant was a party to the arrangement that the commissions should be applied in payment of sums due from defendant upon the contract in suit, he could not avail himself of it, and the testimony of F. was directly to the point that such was the agreement, thereby making defendant a party to the arrangement, and entitled to the benefit of it, it was error tO' strike out the testimony of F.
    Appeal from a judgment of the General Term of the City Court affirming a judgment of a trial term of said court in favor of plaintiffs against defendant for work, labor and services..
    The opinion states the case.
    
      J. A. Dennison, for defendant (appellant).
    
      Clark & Sanborn, for plaintiffs (respondents).
   Daly, Ch. J.

According to the testimony of the defendant, an agreement was made between the plaintiff Walker, Frohman and himself by which the plaintiffs would hire an office in his building and Frohman would receive ten per cent commission on all orders for printing he could obtain for the plaintiffs, and this agreement was the consideration of' defendant’s entering into the contract upon which he is sued in this action. Frohman testified to the same effect, and added that the commissions he was to earn were to apply b> the last jrayments of the defendant’s contract, and that he was not to receive any cash. This testimony the court struck out, on the ground that it contradicted the terms of the written contract between the plaintiffs and defendant, which provided that payments were to be made by the defendant promptly as the printing was used. When the case was submitted to the jury one of the questions they were directed to consider was, whether it was the intention of the plaintiffs that Frohman’s commissions were to be applied to the payment of this claim, it being the contention that Frohman was a stranger to the contract between the parties, and that payments by him would not inure to the benefit of defendant unless there was some evidence showing that it was the intention of the parties to have it so. The question was left to the jury upon a proper statement of the law, but inasmuch as the court had stricken out the testimony of Frohman, which went to show the intention of the parties, the defendant was deprived of his most material evidence upon this issue.

The answer set up the agreement for commissions and that they should be applied in payment of sums due from the defendant upon the contract in suit. Unless the defendant was a party to that arrangement he could not avail himself of it, for payment by Frohman without the privity of defendant would have been payment by a stranger, and this would have been of no advantage to the defendant. Atlantic Dock Co. v. Mayor, etc., 53 N. Y. 64. The testimony of Frohman was directly to the point that it was the agreement between himself, the plaintiff Walker and the defendant that he was not to be paid'in cash, but that his coimnissions and the rentals were to ajDply to the last payments of the contract in suit. This made the defendant a party to the arrangement and entitled to the benefit of it, and the striking out of the testimony deprived him of the evidence offered to establish his contention upon the point in dispute.

For this error the judgment should be reversed and a new trial ordered, with costs of the appeal to the appellant, to abide the event of the action.

Bisohoef and Puyos, JJ., concur.

Judgment reversed, new trial ordered, costs to abide event.  