Traitel v. Dwyer

61 N.Y.S. 1100

• Court: City of New York Municipal Court
• Decided: January 3, 1900
• Status: Published

Opinion

PER CURIAM.

The complaint alleges that on November 20, 1893, an account was stated between plaintiffs and defendant. Two thousand five hundred dollars was the amount agreed upon. On October 2, 1895, $1,500 was paid on account thereof; on January 31, 1896, $500; and on November 7, 1896, $502.83. Complaint demands judgment for $326.61, with interest from November 7, 1896, which sum was the amount of the interest upon said principal sum, or the unpaid part thereof, from November 20, 1893, to November 7,1896, when final payment of the principal sum was made. The answer denies that there is any money due and owing plaintiffs from defendant, and further alleges that the full amount of any indebtedness has been paid.

Upon the trial defendant attempted to introduce evidence showing that defendant paid the $2,500 mentioned by giving three promissory notes for that amount on November 20, 1893, the day the account was agreed upon. All such evidence was excluded by the trial justice, and properly so, because, under the pleadings, no such issue was made. In fact, defendant’s answer admits plaintiffs’ allegations in paragraph 3 of the complaint, which states when and in what manner said sum of $2,500 was paid, and no evidence contradicting the admission so made could be properly admitted in evidence. Therefore it was right to exclude the proposed evidence, as was done.

The defendant further, to sustain his allegation of payment, attempted to show that subsequent to November 20, 1893, plaintiffs obtained a judgment against him for the value of certain services rendered and materials furnished, but in no way was it attempted even to be proved that the judgment so obtained affected in any way the account in question, or that it should be credited against it. The judgment roll introduced by defendant shows conclusively that the verdict obtained ($698.09) in said action was for work done, which was not comprised in, and was no part of, the items which evidently made up the said $2,500 fixed in the account stated on November 20, 1893. Therefore, as we understand the record presented, the trial justice was right in directing a verdict in favor of plaintiffs, because defendant failed to prove payment of the claim sued upon, as he alleged in his answer.

Judgment is affirmed, with costs.