a. Where the complaint alleges a deed and sets forth its effect, if the answer admits the deed, it cannot controvert the effect of the deed being as alleged in the complaint, except by setting out the deed verbatim (see Dimon v. Dunn, 15 N. Y. 495; U. S. v. Thompson, 1 Gallis, 388).

b. A fact impliedly averred may be traversed in the same manner as if it were expressly averred (Frindle v. Caruthers, 15 N. Y. 429; Bellinger v. Craigue, 31 Barb. 534; Lord v. Chesborough, 4 Sand. 696); and if not denied it is admitted (Anable v. Steam Engine Co. 16 Abb. 286). Persons who make contracts with a corporation de facto cannot deny its legal existence (White v. Ross, 15 Abb. 66; East River Bank v. Rogers, 7 Bosw. 494; Mechanics' Building Association v. Stevens, 5 Duer, 676) So in an action by a foreign corporation to recover a sum of money loaned in this State, the defendant is not at liberty to avail himself of the defense that the plaintiff was precluded from the terms of its charter from making such loan (Steam Navigation Co. v. Weed, 17 Barb. 378).

c. Where the contract, stated in the complaint, is not expressly alleged to be in writing, or subscribed by the defendant, but it is one which is not binding on the defendant unless it be in writing, or be subscribed by him, all that is necessary, in order to a complete defense, is to deny the existence of any contract (Livingston v. Smith, 14 How. 492; Amburger v. Marvin, 4 E. D. Smith, 393; Champlin v. Parish, 11 Paige, 408; and see Haight v. Child, 34 Barb. 191); or a complete defense may be set up, by alleging that the contract mentioned in the complaint was not in writing, or not subscribed, as the case may be, which, perhaps, is the better mode of stating the defense (id., citing Cozine v. Graham, 2 Paige, 181; Ontario B'k. v. Root, 3 id. 478; Harris v. Knickerbacker, 5 Wend. 638; 2 Sto. Eq. Pl. § 763). To a declaration in assumpsit the plea was, that the promise alleged was a special promise to answer for the debt and default of another, but there was no agreement in writing stating the consideration, and that the promise was in writing, as follows: I agree to see you paid within 3 months from date the 57. due you from A., signed, &c.-held on demurrer that the plea was an answer to the action without stating there was no other consideration for the promise (Clancy v. Piggott, 4 N. & M. 496).

d. What given in evidence under a denial.-Under an answer denying the allegations of the complaint, defendant may prove he was never indebted at all, or that he owes less than is claimed, that the services were rendered as a gratuity, either as to the whole or in part, or that plaintiff had himself fixed a less price for his services than he claims to recover (Schermerhorn v. Van Allen, 18 Barb. 29); or may give any other evidence to disprove the allegations of the complaint (Andrews v. Bond, 16 Barb. 633). In an action for converting property, a general denial puts in issue the conversion (Robinson v. Frost, 14 Barb. 536; see Ely v. Ehle, 3 N. Y. 510; Jacobs v. Remsen, 12 Abb. 390; Beaty v. Swarthout, 32 Barb. 293). In an action for a wrongful conversion of property, the complaint averred that plaintiff was, at the time of the conversion, the owner and entitled to the immediate possession of the property. The answer denied that at the said time the plaintiff was the owner and entitled to the immediate possession of said property, held, that plaintiff's title was put in issue (Davies v. Hoppock, 6 Duer, 256). In an action for trespass upon land, unless plaintiff's title is put in issue by new matter, it is to be taken as admitted, and the title is not put on issue by a general denial (Squires v. Seward, 16 How. 478; Althouse v. Rice, 4 E. D. Smith, 348; see Ferries v. Brown, 3 Barb. 105). Where the complaint is on a quantum meruit, not setting up a specific contract, in that case, under a general denial, the defendant may show that the work was unskillfully done, or worth less than the amount claimed (Raymond v. Richardson, 4 E. D. Smith, 172; Bellinger v. Craigue, 31 Barb. 534; and see Trimble v. Stilwell, 4 E. D. Smith, 512; but see Larraway v. Perkins, 10 N. Y. 371). When mitigating circumstances cannot properly be set up in the answer they may be given in evidence under a general denial (Kneedler v. Sternberg, 10 How.

68: Dunlap v. Snyder, 17 Barb. 561). To a complaint on a promissory note, which alleged the making of the note by defendant and the delivery of it to plaintiff, the answer alleged that "defendant never gave plaintiff the said note,"-held that the answer was "a denial of the allegation in the complaint that the defendant made the note, so far as making includes delivery (Russell v. Whipple, 2 Cow. 256); and also of the further allegation that the defendant delivered the note to the plaintiff. The question to be tried on these allegations was whether or not the note was delivered to the plaintiff, as alleged by him" (Sawyer v. Warner, 15 Barb. 286). Where the complaint alleges a promise by defendant to pay a certain sum in consideration of a transfer to him of certain property, and this is denied by the answer, defendant has a right to prove any thing that will disprove the allegation of the complaint (Wheeler v. Billings, 38 Ñ. Y. 263).

a. Under a general denial in an action for slander, defendant may give in evidence the general bad character of plaintiff (Anon. 8 How. 434); and in an action for malicious arrest, a general denial puts in issue the want of probable cause (Rost v. Harris, 12 Abb. 446; Radde v. Ruckgaber, 3 Duer, 685; Simpson v. McArthur, 16 Abb. 302, note); so in an action on the case for keeping a ferocious dog which bit the plaintiff; semble the defendant may, on a general denial, avail himself of want of proof that he knew the dog was accustomed to bite (Hogan v. Sharpe, 6 Car. & P. 755).

b. An answer which alleges that the plaintiff" is not the lawful holder and owner of the note" described in the complaint is insufficient to admit evidence that the plaintiff is not the owner or holder (Seeley v. Engell, 17 Barb. 530; 13 N. Y. 542; Brown v. Ryckman, 12 How. 313; and see what is said Hatch v. Peet, 23 Barb. 582; not contra to White v. Spencer, 14 N. Y. 247; see, also, Tamisier v. Cassard, 17 Abb. 187; Arrangois v. Frazer, 2 Hilton, 244; but see McKnight v. Hunt, 3 Duer, 615; Hull v. Wheeler, 7 Abb. 412; Metro. B'k v. Lord, 1 Abb. 185).

c. What defenses cannot be given in evidence under a general denial.—Under a general denial, no defense which confesses and avoids the cause of action can be given in evidence (McKyring v. Bull, 16 N. Y. 297). Thus under a general denial, defendant cannot insist that plaintiff is a married woman and has not legal capacity to sue (Dillaye v. Parks, 31 Barb. 132; Cal. Steam Nav. Co. v. Wright, 8 Cal. R. 585); nor that there is a defect of parties plaintiff (Abbe v. Clark, 31 Barb. 238); nor set up a license to enter the premises of another (Haight v. Badgeley, 15 Barb. 499; Beatyt v. Swarthout, 32 Barb. 293); discharge in bankruptcy (Cornell v. Dukin, 38 N. Y. 253). Usury (Fuy v. Grimstead, 10 Barb. 321; Gould v. Segee, 5, Duer, 260); payment (Field v. Mayor of N. Y. 6 N. Y. 189; Texier v. Gouin, 5 Duer, 392); part payment (McKyring v. Bu l, 16 N. Y. 297; Grosvenor v. Authentic Ins. Co. 1 Bosw. 469); coverture (Castree v. Gavelle, 4. E. D. Smith, 425); that the time for payment has been extended, and is not expired (Newell v. Salmons, 22 Barb. 647); an award or a former recovery for the same cause (Brazil v. Ishum, 12 N. Y. 17; Hendricks v. Decker, 35 Barb. 298); any illegality in the contract (Potts v Sparrow, 3 Dowl. P. C. 630; Burnett v. Glossop, id. 625); nothing which confesses and avoids the cause of action (MeKyring v. Bull, 16 N. Y. 297); the corporate character of a domestic corporation plaintiff (B'k of Genesee v. Patchin B'k, 13 N. Y. 310); otherwise of a foreign corporation (Stone v. West. Trans. Co. 38 N. Y. 240; Waterville Manuf. Co. v. Byran, 14 Barb. 182); that the plaintiff is not the real party in interest, semble (Westervelt v. Alcock, 3 E. D. Smith, 243; Jackson v. Weedon, 1 id. 142; Savage v. Corn Exchange Ins. Co. 4 Bosw. 2); that the cause of action had not accrued before the commencement of the action (Smith v. Holmes, 19 N. Y. 271). In an action by several plaintiffs for an unlawful taking of property, a defense that the plaintiffs are not joint owners (Walrod v. Bennett, 6 Barb. 144); a claim of recoupment to be available must be set up in the answer (Crane v. Hurdman, 4 É. D. Smith, 448; Storp v. Harbutt, id. 464); and so must a defense arising out of the law prohibiting banks from paying out notes not received at par (Codd v. Rathbone, 19 N. Y. 39). Under a plea of

non est factum in an action of convenant, neither a mutual abandonment of contract, nor non-performance of conditions precedent by plaintiff, can be given in evidence (Larraway v. Perkins, 10 N. Y. 371).

a. In an action for converting personal property, a general denial will not uthorize the defendant to prove a special property in the goods; to defeat plaintiff's claim, such a defense must be specially pleaded (Graham v. Harrower, 18 How. 144; Tell v. Beyer, 38 N. Y. 168; and as to defense in action for false imprisonment, see Brown v. Chadsey, 39 Barb. 263; assault by railroad conductor, see Pier v. Finch, 29 Barb. 179).

New Matter.

b. New matter is that which admits and avoids the cause of action set up in the complaint, and constitutes defense (Gilbert ▼ Cram, 12 How. 455; Radde v. Ruckgaber, 3 Duer, 685; Brazil v. Isham, 12 N. Y. 17; Bellinger v. Craigue. 31 Barb. 537; Carter v. Koezley, 14 Abb. 147; Walrod v. Bennett, 6 Barb. 144). Except in actions of slander and libel, circumstances of mitigation are not pleadable. It cannot be done in an action for an assault and battery (Moore v. Devoy, 37 How. 18; Rosenthal v. Brush, 1 Code Rep. N. S. 228; and see Schneider v. Shultz, 4 Sand. 664; Saltus v. Kip, 5 Duer, 646; 12 How. 343; 2 Abb. 383; Schnaderbeck v. Worth, 8 Abb. 37; Hays v. Berryman, 6 Bosw. 679; Gilbert v. Rounds, 14 How. 46; Lane v. Gilbert, 9 How. 150; see, however, Foland v. Johnson, 16 Abb. 235); nor for seduction (Travis v. Barger, 24 Barb. 614); nor for crim. con. (Harter v. Crill, 33 Barb. 283); nor for damages for killing plaintiff's dog (Dunlap v. Snyder, 17 Barb. 561). Defendant may set up as defense, matter which he has previously made the subject of an action, and which action is pending, and the court will not oblige him to elect on which he will rely, his action or his defense (Fuller v. Read, 15 How. 236; Lignot v. Redding, 4 E. D. Smith, 285). And the same rule applies to a set-off, even where the prior action has progressed to a verdict (Naylor v. Schenk, 3 E. D. Smith, 135).

c. New matter must be pleaded. The answer must allege all those facts which, when the cause of the plaintiff is admitted or proved, the defendant must prove in order to defeat a recovery (Catlin v. Gunter, 1 Duer, 266; Ayrault v. Chamberlain, 33 Barb. 237; Carter v. Koezley, 14 Abb. 147; Jacobs v. Remsen 12 Abb. 390; Savage v. Corn Ex. Ins. Co. 4 Bosw. 2; Beatty v. Swarthout, 32 Barb. 293; Pier v. Finch, 29 Barb. 170; Morrell v. Irving Fire Ins. Co. 33 N. Y. 429; Dingeldein v. Third Av. R. R. Co. 9 Bosw. 79; Simmons v. Law, 8 Bosw. 214; Mechanics' B'k v. Foster, 44 Barb. 87; Rapalle v. Stewart, 27 N. Y. 330; Fry v. Bennett, 28 N. Y. 325; Tilson v. Clark, 45 Barb. 178; Taylor v. Richards, 9 Bosw. 680; Allen v. Merch. Ins. Co. 46 Barb. 643). The words "must contain" are imperative (McKyring v. Bull, 16 N. Y. 297), and a defendant cannot give evidence of any defense of new matter not set up in his answer (Diefendorff v. Gage. 7 Barb. 18; Kelsey v. Western, 2 N. Y. 501; N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 20 Barb. 468; Baker v. Bailey,. 16 id. 57; Dewey v. Hoag, id. 365; Fay v. Grimstead, 10 id. 321; Andrews v. Bond, id. 633; Walton v. Minturn, 1 Cal. R. 362; Field v. Mayor of N. Y. 6 N. Y. 179; McKyring v. Bull, 16 N. Y. 297 ; Ruckman v. Brett, 13 Abb. 119; Sandford v. Travers, 7 Bosw. 497; Johnson v. McIntosh, 31 Barb. 267; Button v. McCauley, 38 Barb. 413; Wright v. Delafield, 25 N. Y. 266). Even though such defense appear from the evidence offered by the plaintiff in support of his case (Brazil v. Isham, 12 N. Y. 9; Paige v. Willett, 38 N. Y. 31). But if matter not pleaded or properly receivable in evidence under the pleadings, is in fact proved, without objection on the part of the plaintiff, it must be considered by the court in giving judgment (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 14 N. Y. 85). And an answer which would, if demurred to, have been deemed insufficient, may, nevertheless, if issue be taken on it, be sufficient to warrant the admission of evidence constituting a defense (White v. Spencer, 14 N. Y. 248).

d. Confessing and avoiding.—In pleading new matter, a defend

ant, in order to avoid, need not confess (Taylor v. Richards, 9 Bosw. 679). It is sufficient to refer to the cause of action which it is intended to answer, as the supposed cause of action (Eavestaff v. Russell, 10 M. & W. 365), or even to say, The supposed cause of action, if any such there be (McCormick v. Pickering, 4 N. Y. 280); or to say, The sum "claimed and demanded" (Scadding v. Eyles, 10 Jur. 945; Margetts v. Bays, 4 Ad. & El. 489; and see Ketcham v. Zerega, 1 E. D. Smith, 560; Brown v. Ryckman, 12 How. 313).

4. Prayer for relief.-The answer need not contain any prayer for relief (Clough v. Murray, 19 Abb. 97; Bendit v. Annesley, 42 Barb. 192). Nor is it necessary, after stating facts which show the plaintiff ought not to recover, to add the reasons why he should not recover (Bridge v. Payson, 58and.210).

b. In an action to recover personal property, where the property has been taken from the defendant pursuant to the chapter for claim and delivery (§§ 206-217, post), the defendant, to entitle him to damages for such taking, should claim them in and by his answer (§ 261, post); as a general rule the defendant may recover any special damages without claiming them in his answer (Woodruff v. Cook, 25 Barb. 512).

c. Affidavit annexed to answer denying notice of non-acceptance, &c., of bill or note.-(Laws 1833, ch. 271, § 8; 2 R. S. 283, § 44, &c.) An affidavit by indorsers denying, according to their knowledge, information, recollection, and belief, the receipt of any notice of protest, is a sufficient denial within the statute to prevent a notarial certificate from being presumptive evidence of the facts stated in it; and will throw upon plaintiff the burden of proving demand and notice (Barker v. Cassidy, 16 Barb. 177). An answer verified as required by the code will not satisfy the statute (Arnold v. Rock River Valley Union R. R. Co. 5 Duer, 207; Burrall v. De Groot, id. 379; Young v. Catlett, 6 id. 437; Harbeck v. Craft, 4 id. 128; Lansing v. Coley, 13 Abb. 272; Union B'k v. Gregory, 46 Barb. 99; Gawtry v. Doane, 48 id. 148).

d. Action pending.-Where there are two proceedings pending between the same parties for the same cause of action, the proceeding first commenced is a bar to the last. And it matters not that the prior proceeding is not an action, and was instituted by the party who sets it up as a bar (Groshon v. Lyon, 16 Barb. 461). An action is between the same parties, although those who are actors in one action are defendants in the other (d.) To a complaint on a promissory note, given for a claim for work and materials in building a house belonging to the defendant, it is a good defense that the plaintiff, before he commenced the action on the note, had commenced proceedings under the lien law, to enforce his lien on account of the same work and materials as those for which the note was given, and that such proceedings are still pending (Ogden v. Bodle, 2 Duer, 611; and see Mills v. Block, 30 Barb. 549).

e. An answer of another action pending must allege or show that the two actions are for the same identical cause of action (Kelsey v. Ward, 16 Abb. 98; and see Haire v. Baker, 5 N. Y. 357; Cordier v. Cordier, 26 How. 187); and between the same parties or their privies (Goddard v. Benson, 15 Abb. 191); an allegation that there is another action "now pending between the same parties for the same identical cause of action mentioned in the complaint in this action," is a sufficient answer ( Ward v. Dewey, 12 How. 196).

f. The pendency of a prior suit in the courts of the United States, or the courts of a sister State, is not a defense to an action in this State (Cook v. Litchfield, 5 Sand. 330; Burrows v. Miller, 5 How. 51; Republic of Mexico v. Arrangois, 5 Duer, 643; Williams v. Ayrault, 31 Barb. 364; Strong v. Stevens, 4 Duer, 68). And the fact that in such prior suit an attachment issued and property has been levied upon sufficient to satisfy the demand does not alter the rule (Hecker v. Mitchel, 5 Abb. 453). But where a party is suing in two courts for the same cause of action, he may be compelled to elect in which court he will proceed (Hammond v. Baker, 1 Code Rep. N. S. 105; see Farmers' Loan and Trust Co. v. Hunt, id. 1; Auburn City B'k v. Leonard, 20 How. 193; The People v. North. R. R. Co. 53 Barb. 98).

a. A defense of another action pending, &c., may be defeated by a subsequent discontinuance of the former action (Averill v. Patterson, 10 N. Y. 500); the discontinuance of the first action must be before the second is noticed for trial (Swart v. Borst, 17 How. 71; and see 13 Barb. 183). After discontinuance of the first action the defense of former action pending will be struck out as false (Clark v. Clark, 7 Rob. 276).

b. Where, after an answer of another action pending, a judgment is obtained in the first action, the defendant may obtain leave to set up the fact by supplemental answer (Hendricks v. Decker, 35 Barb. 298).

c. Assault.-Where the answer admitted the assault, but denied that it was of the nature or extent stated,—held this formed no issue (Schnaderbeck v. Worth, 8 Abb. 37; Lane v. Gilbert, 9 How. 150); and that plaintiff's remedy was to move for judgment on the answer as frivolous (id).

d. An alleged assault by plaintiff on defendant at the same time as the assault alleged in the complaint, cannot be,set up as a counter-claim (Schnaderbeck v. Worth, 8 Abb. 37; Barhyte v. Hughes, 33 Barb. 320).

e. Discharge under insolvent or bankrupt act.-A plea of discharge under an insolvent act must distinctly state every fact which was necessary to give the discharging officer jurisdiction in the first instance (Salters v. Tobias, 3 Paige, 338); and these essential requisites cannot be by mere recitals in the discharge set out in the plea (7 Johns. 75; 1 Cow. 316; 3 Wend. 247; 6 id. 433); and as to a discharge under the late bankrupt act, see M' Cormick v. Pickering, 4 N. Y. 276; Coates v. Simmons, 4 Barb. 403; Fox v. Woodruff, 9 id. 498).

f. Goods sold.-To a complaint for goods sold, defendant answered that plaintiff agreed to take his pay in brick from the yard of Van Courtland, that defendant accordingly purchased a quantity of brick, for a sum exceeding the demand of plaintiff, at said yard, which was delivered as directed by the plaintiff,"-held the answer constituted a defense (Lewis v. Acker, 11 How. 165). As to a defense that the goods were of an inferior quality to those contracted for (see Moffet v. Sackett, 18 N. Y. 522; and see Berdell v. Johnson, 18 Barb. 559; Bierne v. Dord, 5 N. Y. 95; Hargous v. Stone, id. 72; Allen v. Haskins, 5 Duer, 335; Castles v. Woodhouse, 1 Code Rep. 72; Read v. Randell, 29 N. Ý. 358; Delano v. Rawson, 10 Bosw. 286; McCormick v. Sarson, 38 How. 190). As to a defense of breach of warranty (see Lemon v. Trull, 13 How. 248, Mondell v. Steele, 8 M. & W. 641; Gillespie v. Torrance, 4 Bosw. 36; aff'd 25 N. Y. 306; Nichols v. Boerum, 6 Abb. 290; in note to section 150, post).

g. Judgment recovered.-In an action against one of several jointcontractors, it is a good plea that judgment has already been obtained by the plaintiff against another joint-contractor for the same identical debt, although the plaintiff has obtained no fruits of his judgment (King v. Hoar, 1 New Pr. Cas. 72). So a recovery against one of two joint-debtors is a bar to an action against both (Benson v. Raine, 9 Abb. 28). A former recovery in an action by an agent is a defense to an action by the principal (Kent v. Hudson R. R. R. Company, 22 Barb. 278).

h. An answer intended to raise the defense that the cause of action in suit is the same as one on which a recovery has already been had should in some form aver the identity of the causes of action (3 Chit. Pl. 928; Philips v. Berick, 16 Johns. 137; Secor v. Sturges, 16 N. Y. 553); and that the action was between the same parties or their privies (Goddard v. Benson, 15 Abb. 191). i. To constitute a 66 recovery" which will be a defense to a subsequent action for the same cause, the recovery must be by the judgment of a court or other competent tribunal (Cashman v. Bean, 2 Hilton, 341). A payment after action commenced and before judgment is not such a recovery (id.) See, as to judgment in one action being a bar to another, Colburn v. Woodworth, 31 Barb. 381; Bellinger v. Craigue, id. 534; Donavan v. Hunt, 7 Abb. 29; Dean v. Eldridge, 29 How. 218; Demarest v. Darg, 29 How. 266; Siemon v. Schurck, 29 N. Y. 598; Bancroft v. Winspear, 44 Barb. 209.