
    Michael Kirchner, Respondent, v. Peter Otto, Appellant.
    (City Court of New York
    General Term,
    November, 1894.)
    In an action for goods sold and delivered the defendant claimed that he informed plaintiff that he had a partner and that he was only jointly Hable with his partner. Plaintiff produced receipts for the goods signed by the defendant and admitted a part payment thereon. Held, that such receipts were proof that the goods were sold and deHvered to the defendant, and that it was not error for the court to instruct the jury to find for the plaintiff for the balance, unless they should find that sutih balance had been paid. ,
    
    Appeal from judgment on verdict and order denying motion for new trial.
    
      
      Wager ds Acker, for respondent.
    
      Mrnkrn Bros., for appellant.
   Yan Wyck, J.

The record shows that plaintiff produced on the trial receipts signed by Peter Otto, the defendant, for $218.50 worth of materials delivered by him to defendant, and plaintiff admitted a payment of fifty dollars, while defendant contended that the entire amount had been paid, and, moreover, claimed that he had informed plaintiff that he had taken a partner, and that, therefore, he was not individually liable for a part of the materials, but. jointly with this partner, who was not made a party defendant. These receipts, signed Peter Otto, are proof that the materials were sold and delivered to him, and it was not error for the court to instruct the jury to find for the plaintiff for the balance of $168.50, unless they should determine that the defendant had paid the same, as he claimed by his evidence. The verdict for plaintiff for such balance and interest is not against the weight of evidence, and the judgment and order are affirmed, with costs.

McCarthy, J., concurs.

Judgment and order affirmed, with costs.  