Walbridge v. Simon

HATCH, J. This action was commenced by the service of a summons on the 20th of September, 1894, and is brought to recover on a promissory note and book account assigned to plaintiff by one Charles Buscher. The complaint is quite informal, and alleged in general terms on an account for goods sold and delivered to defendant by Buscher, and assigned to plaintiffs, and its amount. The defendant answered by a general denial and plea of payment. The proof is undisputed that the account was not assigned to plaintiffs until September 2oth, five days after the service of the summons. The answer put every fact in .issue which it was essential for plaintiffs to establish in order to authorize a recovery, and included the present right of recovery at the commencement of his action. Mack v. Burt, 5 Hun, 28; Griffin v. Railroad Co., 101 N. Y. 348, 4 N. E. 740; Follmer v. Frommel, 63 Hun, 370, 18 N. Y. Supp. 318. Plaintiff seeks to avoid this result by the claim that defendant was either -required to demur or answer specially, and, further, that as no objection was taken upon the trial raising the question it was waived. ■It is clear that no demurrer would lie, for the complaint stated a good cause of action. No defect appeared which required any other answer than the one interposed. The defect was of evidence, and defeated plaintiff’s claim. There was no waiver. Cases which hold that a right is waived for lack of objection only apply where the defect could or might have been supplied if an objection had been interposed, or where it appears that the party intended to waive it. Here the objection could not have been obviated, and there is nothing which shows an intention to waive it. The record discloses that the case was tried and submitted to the judge, and there is nothing upon which a waiver of the question could be predicated more than could be the waiver of any other branch of his defense. He stood insisting that there could be no recovery against him, and plaintiff was required to make his entire case, of whicji ownership was a part. I am also of opinion that error was committed in admitting the account books in evidence. Attempt was made to supply proof required, but, as I view the case, it falls short of what the authorities require. So far as Deck’s testimony is concerned, it only showed that upon one occasion Buscher presented him with a bill, which he found correct, and which he paid. But it is not pretended that he saw the books or settled from them, and they were not present when the bill was presented and paid. Testimony of this character was pointedly condemned in Beatty v. Clark, 44 Hun, 126. The testimony of Pries, a workman, does not answer to supply the defect. His testimony is that he was paid every week, that he knew how much was due, that he had seen Buscher refer to a book, but that he never did, as it was not necessary, for he knew how much he was entitled to. This falls short of the proof which received support in McGoldrick v. Traphagen, 88 N. Y. 337, and is not suffi [941] cient under many well-considered authorities. Dooley v. Moan, 57 Hun, 535, 11 N. Y. S. 239; Davis v. Seaman, 64 Hun, 572, 19 N. Y. S. 260. The judgment appealed from should be reversed, with costs. WHITE, J., concurs.