
    STROBEL & WILKEN CO. v. WEISEN.
    (Supreme Court, Appellate Division, First Department.
    April 7, 1911.)
    1. Parties (§ 84)—Nonjoinder—Failure to Object—Waiver.
    Code Civ. Proc. § 488, permits defendant to demur to the complaint for a defect of parties plaintiff or defendant. Section 498 provides that, where the matters enumerated in section 488 as grounds of demurrer do not appear on the face of the complaint, the objection.may be taken by answer, and section 499 provides that defendant is deemed to have waived an objection not taken by demurrer or answer. Held, that an objection of nonjoinder of defendants was waived where it was not taken by either demurrer or answer.
    [Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 145-147; Dec. Dig. § 84.]
    
      2. Evidence (§ 250)—Admissions—Principal and Surety.
    In an action against the surety on a contract guaranteeing payment of goods furnished another, evidence of admissions made in the surety’s absence by the principal after the conclusion of the business between plaintiff and the principal as to the amount due plaintiff was not admissible.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 976-982; Dec. Dig. § 250.]
    3. Evidence (§ 123)—Res Gestas—Statements by Third Persons.
    Such admissions were not admissible as res gestae.
    [Ed. Note.—For other cases, see Evidence, Dec. Dig. § 123.]
    4. Appeal and Error (§ 1050)—Harmless Error—Admission op Evidence-Prejudicial Eppect.
    Error in admitting evidence in an action on a suretyship contract was prejudicial to defendant where without such evidence there was nothing to show the amount due plaintiff for the goods furnished under the contract.
    [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1050.]
    5. Appeal and Er,ror (§ 280)—Exceptions in Lower Court—Evidence-Waiver.
    Defendant by moving for a directed verdict at the close of the case did not waive his exception to the admission of evidence so as to preclude him from urging on appeal error in its admission.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1646-1649; Dec. Dig. § 280.]
    Appeal from Trial Term, New York County.
    Action by the Strobel & Wilken Company against Max Weisen. From a judgment for plaintiff and an order denying a new trial, defendant appeals.
    Reversed, and new trial granted.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
    E. J. Myers, for appellant.
    Frederick Hemley, for respondent.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes.
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SCOTT, 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 & Wilken Co., New 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, Weisen Bros., per Max Weisen.
“Witness: E. C. Mueller.”

The complaint alleges the defendant was a member of the firm of Weisen 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, but that of the firm, and that there was therefore a nonjoinder 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, 92 N. E. 1047; Jones v. Gould, 200 N. Y. 18, 92 N. E. 1071.

A more serious objection to 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 addition to some not very precise evidence as to the delivery of the goods and the partial payments, an employé of the plaintiff was permitted to testify to certain statements and admissions made to him by the principal, in the absence of defendant, respecting the amount due from the firm whose 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 no 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 verdict. 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 judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. All concur.  