Elsas v. Gallagher , 68 N.Y.S. 839 ( 1901 )

O’Gorman, J.

The complaint is for goods sold and delivered, and the answer is a general denial. Upon the trial the sale and the delivery of the goods and nonpayment of the balance claimed were substantially conceded. The defendant claimed, however, that his freight charges on the goods in question were eighty-nine dollars and forty-seven cents more than they should be, and that this excess was caused by careless conduct of the plaintiff’s assignor in the method employed in forwarding shipments. This defense was not available under the pleadings, but waiving that point it does not seem to-be supported by the evidence. The defendant bases his contention upon certain alleged oral promises made by an employee of the plaintiff’s assignor, but the engagements of the parties were in writing and could not be affected by prior or contemporaneous oral promises or negotiations. The judgment in the court below was proper and must be affirmed.

Andrews, P. J., and Blanchard, J., concur.

Judgment affirmed, with costs.