#### Emanuel Arnstein, Appellant, *against*Ellen A. Haulenbeek, Respondent.

(Decided December 1st, 1890.)

An order of the General Term of the City Court of New York affirming an order denying a new trial cannot be reversed on appeal to this court on the ground that it is against the weight of evidence.

Error, if any, in excluding a question to a witness as to an indorsement of a pass-book, is cured by the subsequent admission of the book itself.

Where defect of parties, is not pleaded, the exclusion of evidence that a person not a party to the action was a partner of plaintiff'is not error.

The exclusion of evidence, corrected, if erroneous, by subsequent proof of the fact, is not ground for reversal.

A judgment cannot be reversed on the ground that a statement of the evidence in the charge of the court below was incorrect, where no request for a correction was made by appellant.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The facts are stated in the opinion.

*H. B.*Vandyke, for appellant.

*A. L.*Jacobs, for respondent.

Pryor, J.

The appeal is from a judgment of the General Term of the City Court affirming a judgment on a verdict, and from an order affirming an order denying a motion on the minutes for a new trial. The action is upon an account stated, for goods sold and delivered. The answer is a general denial. That the goods were sold and delivered, and that the balance claimed has not been paid, were conceded facts on the trial. The only issues litigated were the statement of account and the liability of defendant.

Upon the appeal from the order, defendant’s contention is that the verdict is against the weight of. evidence. But, the

*383rule is settled beyond controversy that, upon appeal from an order of the General Term of the City Court affirming an order denying a new trial, this court cannot reverse the order on the ground that the verdict is against the weight of evidence *(Rowe*v. Comley, 11 Daly 317; *Farley*v. Lyddy, 8 Daly 515; *Tinsdale*v. Murray, 9 Daly 446; *McEnteere*v. Little, 8 Daly 167; *Bell*v. Bartholomew, 11 Rep’r 510, 12 Weekly Dig. 33; *Duryea*v. Vosburg, 121 N. Y. 57). But even had this court jurisdiction to review the order, it must be affirmed: because the case does not purport to contain all the evidence bearing on the questions in controversy *(Aldridge*v. *Aldridge,*120 N. Y. 614; *Porter*v. Smith, 107 N. Y. 531; *Davis Sewing Machine Co.*v. *Best,*50 Hun 76; *.Wellington*v. *Improvement Co.,*62 Hun 409 ; *Murphy*v. *Board,*53 Hun 171; *Cheney*v. *Railroad Co.,*16 Hun 415; *Cornish*v; *Graff,*36 Hun 160). It is sufficient for the respondent that the case exhibits some evidence to support the verdict • *(Aldridge*v. *Aldridge, supra).*

In the interest of substantial justice it should be said, that, on a careful examination of the evidence, we do not observe such a preponderance of proof for the appellant as would warrant a reversal of the verdict *(Baird*v. *Mayor,*96 N. Y. 567). Upon the issues litigated, the case shows a direct conflict of evidence between the two witnesses of the respondent and the two witnesses of the appellant; and the rule is fundamental and familiar, that the credibility of testimony is exclusively for the jury.

The exceptions to the rulings and charge of the court are obviously untenable.

(1) The exclusion of the question, “Look at this pass-book and say whether that was not ordered in the name of P. Haulenbeek ? ” if erroneous, was corrected by the subsequent admission of the book itself, which exhibited the indorsement to the jury.

(2) As the answer alleged no defect of parties, the testimony stricken out and the testimony excluded, as to Berg being a partner of plaintiff, were irrelevant to any issue in the action. A defect of parties plaintiff is waived if not *384taken either by demurrer or answer (Code Civ. Pro. § 499 ; *Zabriskie*v. Smith, 13 N. Y. 322; *Palmer*v. Davis, 28 N. Y. 242).

(3) In the absence of a plea of payment, there was no error in excluding evidence that Mrs. Haulenbeek had settled the account sued for *(McKyring*v. *Bull,*16 N. Y. 297), and the fact that Mr. Haulenbeek paid some bills by his check as agent, authorized no inference that he was discharging his ' own obligation, but the reverse rather. But the error, if any, was corrected by subsequent proof of the fact.

(4) Appellant’s final exception is to the charge of the court that “ unless you believe the plaintiff on that point, he must fail, unless you believe the evidence of the plaintiff and his bookkeeper to the effect that Mrs. Haulenbeek promised to pay this bill on several occasions.” The ground of objection was, as stated by counsel, my “ remembrance that they testified that she would see Mr. Haulenbeek, and have him see to it.” But counsel’s memory was at fault. Plaintiff testified that defendant said “ she would see that I got my money,” and the bookkeeper testified that when he presented the bill to defendant, she said “ she didn’t have the money then, but would have it by the next day,” and that “she had got the bill and would pay it,” (fol. 32). The court, therefore, did not misstate the evidence in saying that, in effect; plaintiff and his bookkeeper testified that defendant promised to pay the bill. If it were otherwise, however, appellant should have requested the court to correct its charge, so as to conform it to the testimony.

The judgment and order must be affirmed, with costs.

J. F. Daly, Ch. J.; and Bischoff, J., concurred:

Judgment and order affirmed, with costs.