This action was originally brought against the Consolidated Gas Company to recover gas rebates. The present defendants were interpleaded, and the money has been paid into court. Plaintiff claims that the right to rebates was assigned by the partnership of Torrey & Davis to the Why Dairy Lunch Company coincidently with an assignment of the business.
The only evidence of an assignment of the right to rebates accruing up to February 1,1907, the date of the transfer of the business, was the admissions of the defendants in supplementary proceedings. The attempt by defendants to introduce in evidence two written assignments was successfully resisted by plaintiff, on the ground that they were signed only by E. H. Torrey as an individual. Evidence offered and questions asked for the purpose of showing that Torrey alone was in*599terested in the store, No. 2 Beekman street, were excluded on plaintiff’s objection. Defendants had a right to explain their admissions. Certain questions directed to that end were, it is true, not quite admissible, as they called for conclusions; but the objection to these questions as immaterial, irrelevant, and incompetent does not raise the point that the questions called for a conclusion. Hellinger v. Marshall, 92 App. Div. 607, 86 N. Y. Supp. 1051.
As to the second cause of action, defendants’ counsel moved to amend by changing the language of the answer from “and it [the new company] consumed and paid” to read “that it consumed and the defendants paid for the gas,” etc. This motion to amend was denied on the objection of plaintiff’s counsel; but the motion should have been granted, since plaintiff’s counsel did not even claim that he would t>e prejudiced or surprised. Carlisle v. Barnes (No. 2) 102 App. Div. 582, 92 N. Y. Supp. 924.
Judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.