
    J. Emery Stark, Resp’t, v. Charles McClosky, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 30, 1888.)
    
    Pleading—Evidence.
    In an action for a balance claimed to be due for goods sold and delivered the answer put in issue every allegation of the complaint. _ An issue in the case, was whether the contract was made with the plaintiff in his individual capacity or as representative of a certain company. Held, that the defendant should have been permitted to show that the plaintiff . was the manager of said company at the time referred to in the complaint; that the transaction was in fact one with the company, and that the liability, if any, on the part of the defendant was to the company.
    Exceptions ordered to be heard in the first instance at-the general term.
    
      
      R. H. Charming, for def’t app’lt; J. S. Merwin, for pl’ff resp’t.
   Browne, J.

The action is for a balance claimed to be due for goods sold and delivered. The answer put in issue every allegation of the complaint.

An issue in the case was whether the contract of sale was in fact made with plaintiff, in his individual capacity or as the representative of the Central Moulding & Lumber Company.

The defendant requested to be permitted to give testimony showing that the plaintiff was the manager of the company at the time of the transaction referred to in the complaint and that the tranaction was in fact one with the company. And that if there was any liability on the part of the defendant (which is denied; the defendant claiming payment), it was to the company.

The justice declined to receive the evidence.

The defendant thereupon excepted. The ruling was error. The exception will be sustained.

The verdict in favor of the plaintiff will be set aside, a new trial ordered, with costs to abide the event.

Me Ad am, Ch. J., and Ehrlich, J., concur.  