This action was brought to recover the sum of $1,074.50, with interest from October 1, 1889. It was claimed in the complaint that plaintiffs had been damnified to this amount by reason of their having sold and delivered to defendant goods, wares, and merchandise in reliance upon the representations of the latter that on July 20, 1889, his indebtedness was about $2,500, and his assets were about $16,000, which said representations had proved to be false, inasmuch as at the time such indebtedness was over $6,000, and such assets much less than $16,000, and that the defendant had made the said representations with the intent to defraud the plaintiffs. The above allegations were denied by the answer. The trial was had before a justice and a jury on the 8th day of January, 1892. A verdict was rendered in favor of the plaintiffs for $1,220.63, which was the sum demanded in the complaint, with interest thereon. This appeal is taken from the judgment subsequently entered for the sum of $1,397.40, and also from an order of the said justice denying the defendant’s motion to set aside the verdict and for a new trial. Upon the trial only one witness testified. I-Ie was Frank Rothschild, Jr., a credit man of plaintiffs, who was called in their behalf. It appears by the evidence adduced that between February 27 and April 10, 1889, the plaintiffs sold to Ridley & Porter, of Louisville, goods to the amount of $517.59, which were paid for. These goods were not sold upon any personal representations of the defendant, but upon information which plaintiffs received from Dun’s and Bradstreet’s mercantile agencies, and various merchants, including Armstrong, Gator & Co., of Baltimore. It was sought to be proved that afterwards the plaintiffs had a correspondence with defendant, consisting of three letters, two of which were alleged to have been written by plaintiffs on July 8 and 16, 1889, respectively, and one to have been written by the defendant on July 20th, in answrnr to the plaintiffs’ letter of the 16th. The contents of the alleged letter of July 8th were not disclosed in evidence, and the defense admitted that it was unknown to them whether the letter alleged to have been written by defendant on July 20th was in answer to the plaintiffs’ letter of July 8th or July 16th. The whole case of the plaintiffs rested upon proving a false and fraudulent statement of material fact in the letter of July 20th, followed by a sale and delivery of goods to defendant in October, 1889. It did not appear that the postscript of the letter was false, nor that the statement that defendant, during the season, owed as high as ten and twelve thousand dollars was false, nor that any part of the truth of the letter was questioned, except the statement reading as follows: “My indebtedness is about $2,500, due to different millinery jobbers.” The only evidence offered" of the falsity of this statement was the testimony of Rothschild’s credit man to a conversation purporting to have been had between him and defendant on or about the 25th day of October, 1889, when it was claimed defendant admitted that the said statement was untrue. It is contended by appellant that there was no false representation or fraudulent intent on the part of defendant. It is further contended that there was no competent proof of a sale and delivery of goods in reliance upon whatever representations, if
“The defendant in the above-entitled action, for answer to the complaint of the plaintiffs therein—First. Denies that he has any knowledge or information sufficient to form a belief as to the allegation that the plaintiffs were at the timi-s mentioned in the complaint, and still are, partners in business in the city of Hew York under the firm name of S. Rothschild & Bro. Second. Denies that he has any knowledge or information sufficient to form a belief as to the allegation that on July 20, 1889, he, the defendant, for the purpose of inducing the plaintiffs to sell goods to him on credit, represented to the plaintiffs in writing that his indebtedness at that time was about twenty-five hundred dollars, and that his assets were about sixteen thousand dollars. Third. Denies that he has any knowledge or information sufficient to form a belief as to the allegation that the plaintiffs, believing the said representations to be true, and relying thereon, sold and delivered to the defendant on credit goods, wares, and merchandise amounting in the aggregate to one thousand and seventy-four dollars and fifty cents, no part of which has been paid. Fourth. Denies that he has any knowledge or information sufficient to form a belief as to the allegations that, as plaintiffs are informed, believe, and aver, the said representations were false; that the defendant was indebted at the time he made the said representations in a sum exceedingsix thousand dollars, and that his assets were much less than sixteen thousand dollars; and defendant den;es that he made the said or any representations with the intent to defraud the plaintiffs, and defendant alleges in this behalf that whatever representations were made by him to plaintiffs on or or about July 20, 1889, or on any other dale mentioned in the complaint herein, if any representations were made on such dates, were true. Fifth. Denies the allegations of the complaint that by reason of the matters aforesaid the plaintiffs have been damaged to the extent of one thousand and seventy-four dollars and fifty cents. Sixth. Denies that the plaintiffs have ever been damaged by reason of any acts or representations of defendant in any sum whatsoever. Seventh. Denies each and every allegation in said complaint contained not hereinbefore specifically denied or admitted. Whereiore defendant demands judgment against the plaintiffs that the complaint herein be dismissed, together with the costs of this action.
“Gruber, Bard & Landon, Attys. for Defendant.
“Office and postoffice address: Ho. 41 Park Row, Hew York city.”
We think that the third -denial was a denial of the third allegation in the complaint, repeating the whole thereof, and did not by terms of inference admit any part thereof; and that the seventh denial, being as follows: . “Denies each and every allegation in said complaint contained, not heretofore specifically denied or admitted,”—is a good denial, and puts the plaintiff to the proof of the sale and delivery of the goods in order to prove his damages. See Griffin v. Railroad Co., 101 N. Y. 348, 354, 4 N. E. Rep. 740. But, whether this be correct or not, the plaintiffs evidently tried the cause on the assumption that the answer was sufficient, and it was necessary for them to prove the sale and delivery of the goods. The goods were conceded by the plaintiffs to have been sold in Louisville, Ky., not by witness; nor was he present, nor were they delivered or shipped by him to the defendant-. His position in the plaintiffs’ business was that of office man, attending to the credits, collections, and correspondence. The only evidence attempted on this branch is as follows. “Question. I will come now to the selling by your firm of these goods in question. Have you the order that was sent to you by the defendants Answer. It was a salesman order.” Continuing, the witness said: “I have not it here; but I have-my ledger, which contains the account. I know of the shipment of these goods to Mr. Porter.
This was error, as the information was mere hearsay, gained from a written order not produced at the trial, and taken by a salesman who is not present. Neither was this ledger a book of original entry, nor was it kept by the witness, nor in his handwriting. The permitting of the witness to make such entries evidence for any purpose of the transactions in this action was, we think, error. Ives v. Waters, 30 Hun. 297, 298; Beatty v. Clark, 44 Hun, 127; Vilmar v. Schall, 35 N. Y. Super. Ct. R. 67; Dooley v. Moan, (Sup.) 11 N. Y. Supp. 239. At the close of the judge’s charge, which up to that point we think correct, he was requested by defendant’s counsel to charge as follows: “Third. The fact.that the representations were false is not sufficient to enable the plaintiffs to recover in this case. The Court. I decline to so charge.