Simmons v. Wilde

Gildersleeve, J.

The pleadings are in writing. The complaint sets forth a cause of action for goods sold and delivered, while the answer is a general denial. It is the plaintiff’s contention that she sold to defendant, through the latter’s wife as his authorized agent, some lace, linen and a carpet of the total value of $55, which defendant agreed to pay therefor. Defendant, on the other, hand, maintains that he refused to take the carpet, and that he accepted the lace and linen on account of a debt of $65.25, owing to defendant by plaintiff’s husband. On this conflict of evidence, the justice found for the defendant, and although the testimony offered on defendant’s behalf is somewhat hazy and indefinite, there is enough to sustain the finding of the justice.

The only question of law that requires notice is the one raised by plaintiff’s motion to strike out defendant’s testimony with regard to the indebtedness of plaintiff’s husband, on the ground that it was not embraced within the issues and could not be proved under defendants’ general denial. We do not regard the point as well taken. Under a general denial contained in an 'answer, the defendant in the action may contradict any evidence given by the plaintiff in support of the cause of action alleged in the complaint, and he is not confined to a simple denial of the facts testified to in behalf of the plaintiff, but he may introduce any evidence which tends to show the transaction between the parties to have been different from what the plaintiff claims. See Tompkins v. Tompkins, 78 Hun, 220. Under the state of facts disclosed in the case at bar, we do not think the cases of Milbank v. Jones, 127 N. Y. 370; Kelsey v. Western, 2 id. 500; and Milbank v. Jones, 141 id. 340, apply. The judgment is affirmed, with costs.

Beekman, P. J., and Gtegerich, J., concur.

Judgment affirmed, with costs. -