Almy v. Hammer

Evidence was introduced over plaintiff’s exception to the effect that plaintiff was being financed by another firm, who were entitled to the amount due, if any, from defendants. A motion to strike out the testimony was denied, and exception taken. The *340jury was not charged to disregard it, and it is very likely that it influenced its verdict. Defendants contracted with plaintiff, and did not plead that he was not the real party in interest. The evidence was erroneously admitted. Code Civ. Proc. § 449; Smith v. Hall, 67 N. Y. 48. It is therefore proper to order a new trial.

The evidence upon the other issue may vary upon the new trial, and it is therefore not necessary to consider it now.

Order affirmed, with costs.