Anderson v. Slee

Judgment reversed upon the law and the facts, and a new trial granted, costs to appellant to abide the event. We are of opinion that the trial court erred in sustaining respondent’s objections to documents offered by defendant to prove that he had fully paid F. G. Fearon & Company, the general contractor, for the materials delivered by respondent, and in charging the jury that title to the materials remained in respondent, under the circumstances here disclosed, until they were installed in the building. Had the court admitted defendant’s Exhibits E, F, G and H for identification, it would then have appeared that the materials were, under a contract made with appellant, furnished by the general contractor,' to whom appellant made payment at a time when such payment became due and owing to the general contractor. The subsequent failure of the general contractor, before the respondent was paid, did not render appellant liable in the absence of an agreement, either expressed or implied, by him to pay for the materials. We cannot dismiss the complaint as to the cause of action involving materials as the record now stands, for the reason that appellant was not permitted to prove his defense. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.