
    Arthur S. Levine, Respondent, v. Kosher Matzoths Baking Company, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Evidence — when admissible — when entitled to introduce proof in contradiction of testimony as to acceptance — pleading — costs — Municipal Court Code, § 93(2).
    Where the answer in an action for the breach of a contract for the sale and delivery of goods is a general denial, evidence on behalf of defendant tending to show that goods delivered were not in accordance with the contract is admissible.
    In such case defendant is also entitled to- introduce proof in contradiction of plaintiff's testimony as to acceptance of the last delivery of the merchandise without raising the objection that they were not in accordance with the contract.
    The imposition of costs as terms of granting an amendment to the answer, no claim being made of surprise or prejudice, was not “ just ” within the meaning of section 93(2) of the Municipal Court Code, nor a proper exercise of discretion, as the evidence sought to be introduced was admissible under the general denial.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of plaintiff, entered by direction of the court after a trial without a jury.
    Nathan D. Shapiro, for appellant.
    Goldstein & Goldstein (Jonah J. Goldstein, of counsel), for respondent.
   Guy, J.

The action is brought to recover damages for breach of contract for the sale and delivery of goods.

The complaint alleges a delivery of part of the order and a refusal by defendant to pay therefor, and subsequent notice by defendant to plaintiff that it would not receive any more of the goods ordered, and a refusal by defendant to comply with its agreement.

The answer is a general denial.

Plaintiff testified to the making of the contract; to a delivery of part of the goods and payment therefor by defendant on delivery; to a subsequent delivery of an additional quantity of the goods and an acceptance thereof by defendant, with the statement that no question was raised as to their being in accordance with the contract, and a promise to pay therefor the following day; to a subsequent refusal to pay therefor on the ground that they were not in accordance with the contract, and a notification to plaintiff to take back the goods last delivered. Defendant then sought to introduce evidence showing that the goods delivered were not in accordance with contract, and negativing plaintiff’s testimony as to defendant’s unconditional acceptance of the last delivery of goods. This evidence was excluded by the learned trial judge, holding that such proof was inadmissible under defendant’s general denial. The exclusion of this evidence was error. The complaint alleged performance, and the answer denied performance by plaintiff. Under such denial defendant was entitled to introduce any evidence tending to show nonperformance by plaintiff of the terms of his contract. Bettenhasser v. Templars of Liberty, 58 App. Div. 61; Milbank v. Jones, 141 N. Y. 340; Benton v. Hatch, 43 Hun, 142; affd., 122 N. Y. 322. Defendant was also entitled to introduce proof in contradiction of plaintiff’s testimony as to acceptance of the last delivery of the merchandise. While the amendment asked for by the defendant was unnecessary, as the evidence sought to be introduced was admissible under the general denial, we are of opinion that the imposition of costs as terms for the granting of an amendment of the character applied for, where no claim of surprise or prejudice is made by the other side, is not “ just,” as required by section 93, subdivision 2 of the Municipal Court Code, and is not a proper exercise of the discretion vested in the trial judge by said section.

The judgment must, therefore, be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Bijtjb, and Philbin, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  