Howard & Childs Co. v. Conaty , 116 N.Y.S. 614 ( 1909 )

PER CURIAM.

This action is brought to recover a balance of $ll2 'due' from defendánt "to the'plaintiff brewery for beer received by defendant. The defense is payment. The only evidence -to sustain the answer is that defendant paid the amount to one Thomas Rodden. Defendant was then'asked by'his‘counsel:

“Q. Who is Thomas Rodden?

“Plaintiff’s Counsel: I object, as a conclusion.

“The Court: Objection overruled.

“Plaintiff’s Counsel: Exception.

“The Witness: He was a collector for the brewery.

“The Court: What brewery?

“The Witness: Howard & Childs.

“Plaintiff’s Counsel: I move to strike that out as his own conclusion.

“The Court: Motion denied.

“Plaintiff’s Counsel: Exception.”

This and a similar preceding statement by defendant was the only •evidence df Rodden’s agency for the brewery. It was clearly insufficient, and the judgment for defendant, rendered upon the strength of it, must be reversed, and a new trial ordered, with costs to appellant to abide the event.

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