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the landlord becomes entitled, upon its cessation, to recover for rent which had previously accrued. Ogden vs. Sanderson, 3 E. D. Smith, 166. Nor will eviction constitute a defence for rent previously due. Vernam vs. Smith, 15 N. Y., 327; Brooks vs. Christopher, 5 Duer, 216; Giles vs. Comstock, 4 Comst., 270. As to a total destruction of premises demised, without substitution of others by the landlord in their place, excluding the ordinary rule in such cases, and working not merely a suspension, but an extinguishment of rent payable under a covenant, see Graves vs. Berdan, 29 Barb., 100.

Mere annoyance or injury, not amounting to an actual eviction, will not, however, avail to work an extinguishment, or even a suspension of rent, and cannot be set up by a tenant, who, notwithstanding, remains in possession of the premises demised. Edgerton vs. Page, 20 N. Y., 281; 18 How., 359; 10 Abb., 119; affirming same case, at general term, 1 Hilt., 320; 14 How., 116; 5 Abb., 1; and reversing same case, at special term, 12 How., 58; Campbell vs. Shields, 11 How., 565; Mortimer vs. Brunner, 6 Bosw., 653. Nor will a failure on the part of the landlord to make repairs agreed upon, amount to an eviction. Speckels vs. Say, 1 E. D. Smith, 253; Tibbetts vs. Percy, 24 Barb., 39; Ellis vs. McCor mick, 1 Hilt., 313; Gottsberger vs. Radway, 2 Hilt., 342.

Nor does any interference of the superior landlord have the effect of an eviction, as between a subtenant and his immediate lessor. Luckey vs. Frantzkee, 1 E. D. Smith, 47.

In relation to acts on the part of the landlord, amounting to acceptance of a surrender, see Stanley vs. Koehler, 1 Hilt., 354.

N. B.-Several of the above decisions relate to the liability of a surety for rent, in whose favor, a defence, good in the mouth of his principal, is, as a general rule, equally available.

(0.) GOODS SOLD.

The retaking in replevin, by the vendor, of goods sold by him for cash, but not paid for, forms a complete defence, in a subsequent action for their price. Morris vs. Rexford, 18 N. Y., 552. So likewise, an attachment of that price in the hands of the defendant, by creditors of the plaintiff, and payment under a subsequent judgment in that proceeding, even though taken in another state. Donovan vs. Hunt, 7 Abb., 29.

In an action for the price of goods fraudulently sold, the title of the true owner may be set up as a defence. See Sherman vs. Partridge, 11 How., 154; 1 Abb., 256; 4 Duer, 646; and Bates vs. Stanton, 1 Duer, 79, there referred to.

Stipulations, as between individual partners, as to not contracting debts without mutual consent, form no defence, in an action for goods

sold to the partnership, without notice, and in the usual course of busiFrost vs. Hanford, 1 E. D. Smith, 540.

ness.

(p.) WORK, LABOR, AND SERVICE.

The giving and subsequent payment of a promissory note by the defendant to the plaintiff, after the former's claim accrued, is, primâ facie, a complete defence, but rebuttable. Duguid vs. Ogilvie, 3 E. D. Smith, 527.

As to the defence of neglect in the performance of services, being, when substantiated, completely available, see Peterson vs. Rawson, 2 Bosw., 234.

(7.) EXECUTORY CONTRACTS.

Non-performance, on the part of the plaintiff, will constitute a complete defence, in an action of this description. Voorhies vs. Anthon, 5 Duer, 178. But a partial failure will only be available pro tanto. Dart vs. McAdam, 27 Barb., 187.

So also, as to a total failure or worthlessness of the subject-matter. Kip vs. Monroe, 29 Barb., 579; McDougall vs. Fogg, 2 Bosw., 387. Or even a material impairing of its value, though not amounting to absolute worthlessness. Benedict vs. Field, 16 N. Y., 595; affirming same case, 4 Duer, 154.

Mistake may constitute a defence to an executory contract, whilst it remains executory, but, when executed, a stricter rule will prevail, and mere mistake will no longer be available. Mutual Life Insurance Company of New York vs. Wager, 27 Barb., 354.

(r.) STOCKHOLDERS AND SUBSCRIBERS.

A substantial diversion from the original contract, will release a defendant from his obligation. Buffalo, Corning, and New York Railroad Company vs. Pottle, 23 Barb., 21.

A stockholder, sued by a creditor of the company, is liable to such suit, or, to the full extent of the shares subscribed for by him; but previous payment of debts to that extent, or a previous recovery, by another creditor, to the full amount of such liability, will constitute a defence to a subsoquent action. Woodruff & Beach Iron Works vs. Crit tenden, 4 Bosw., 406; Garrison vs. Howe, 17 N. Y., 458.

As to the power of the holder of full paid stock, not liable to further calls, to set up that fact in his answer, and as to its constituting a complete defence, unless controverted, see Lewis vs. Ryder, 13 Abb., 1.

In an action to charge trustees of a manufacturing corporation, with debts of the company, on the ground of omission to file their annual report, delay, on the part of the plaintiff, in asserting his remedy, VOL. II-10

though claimed to be prejudicial to the defendants, will not constitute a defence. Merchants' Bank of New Haven vs. Bliss, 21 How., 365; 13 Abb., 225.

3. Defences in Equitable Actions.

(8.) DIVORCE.

Rule 89 (67), makes the following provision on this subject:

"The defendant, in the answer, may set up the adultery of the plaintiff, or any other matter which would be a bar to a divorce, separation, or the annulling of a marriage contract; and, if an issue is taken thereon, it shall be tried at the same time, and in the same manner as other issues of fact in the cause."

The essentials of this class of suits, including, in a great measure, the essentials of the defences which are admissible, have already been fully entered upon in book VII., chapter II., section 156, to which the reader is accordingly referred. See especially, McNamara vs. McNamara, 2 Hilt., 547, as to the incompatibility of pleading matter which would form a subject of total divorce, in answer to a complaint for a separation, or the converse.

Provocation on the part of the wife may be alleged by the husband, in his answer to a complaint by the former, for a divorce, on the ground of cruelty. He may also introduce allegations to show the real value of a dowery received with her, and also statements, in support of any equities he may have on that ground, in opposition to her claim for alimony. Devaismes vs. Devaismes, 3 C. R., 124.

When the answer sets up adultery as a defence, it should be alleged in precise conformity with the provisions of the statute, and with the same particularity as is requisite in the statement of a cause of action on the same ground. Morrell vs. Morrell, 3 Barb., 236; 1 Barb., 31 8.

(t.) SPECIFIC PERFORMANCE.

As to an offer in the answer to perform, being sufficient, in a suit of this nature. where actual tender of performance has been made, after suit brought, though such tender may be specifically pleaded, see Beebe vs. Dowd, 22 Barb., 255. See also Stevenson vs. Maxwell, 2 Comst., 408.

See, as to the power of setting up in defence, a different contract from that sued upon by the plaintiff, and the effect of the admission thereby made, Haight vs. Child, 34 Barb., 186.

(u.) FORECLOSURĖ.

The essentials of this description of suit, including, in a great measure, the essentials of such defences as may be available in it, have already been considered in book VII., chapter II., section 154. See that section, and several of the decisions there cited.

The objection as to want of proper parties, is available as a defence to the mortgagor liable for a deficiency, even though he may have parted with the equity of redemption. See Hall vs. Nelson, 23 Barb., 88; 14 How., 32. N. B.-The specific objection taken in that case has been obviated by a subsequent amendment of the Code. See, however, St. Mark's Fire Insurance Company vs. Harris, 13 How., 95.

A mortgagor cannot set up a defence, going behind the mortgage sought to be foreclosed, in the absence of fraud or misrepresentation. Northrop vs. Sumney, 27 Barb., 196. Nor is eviction under a paramount title an available defence to a subsequent grantee, though the suit be for a purchase-money mortgage, and though such grantee be assignee of the covenants of the plaintiff. National Fire Insurance Company vs. McKay, 21 N. Y., 191.

It is competent for a defendant to show, in bar of the right of an assignee, that his assignor was not competent to make an absolute assignment. Renaud vs. Conselyea, 7 Abb., 105; reconsidering and overruling same case, 5 Abb., 346; and reversing decision, 4 Abb., 280.

The defence of usury between mortgagor and mortgagee, is not available to a subsequent encumbrancer. Sands vs. Church, 2 Seld., 347.

The defence that a valid mortgage has been assigned for illegal purposes, is available, as against the assignee. Dewitt vs. Brisbane, 16 N. Y., 508.

The purchasing mortgaged property by the mortgagee, under an execution sale, will not constitute a merger; nor can such a defence be subsequently set up on a foreclosure, by persons who have bought the land, expressly subject to the mortgage sought to be foreclosed. Reed vs. Latson, 15 Barb., 9.

As to the invalidity of the foreclosure of a loan commissioner's mortgage, where the course of proceedings enjoined by the statute is not strictly followed, see Pell vs. Ulmar, 21 Barb., 500 See also, as to the invalidity of such a mortgage, when irregularly taken, as against all parties not absolutely estopped by concurrence in the transaction, New York Life Insurance and Trust Company vs. Staats, 21 Barb., 570.

Failure to advance the total amount designed to be secured by an executory mortgage, is no defence to a suit upon it, so far as regards advances actually made. Dart vs. McAdam, 27 Barb., 187.

Inability to find the plaintiff, in order to pay the interest in due time, constitutes no defence, in the absence of any allegation of fraud or trick on his part. Dwight vs. Webster, 32 Barb., 47; 19 How., 349; 10 Abb., 128.

Mere delay, on the part of the plaintiff, in asserting his remedy, will not constitute a defence. See Merchants' Insurance Company of New York vs. Hinman, 34 Barb., 410; 13 Abb., 110.

4. Defences in Real Estate Actions.

(v.) PARTITION.

In partition, whether by petition or suit, any thing may be pleaded "which will abate the action, or bar the petitioner's right to a judg ment." Reed vs. Child, 4 How., 125; 2 C. R., 69. But facts merely introduced for the purpose of endeavoring to charge the adverse party with costs, as, for instance, allegations of an unreasonable refusal to make partition by deed, will be stricken out as irrelevant. McGowan vs. Morrow, 3 C. R., 9.

In a proceeding of this nature, it is competent for one defendant to dispute the claims of another; and these claims may properly be tried and settled in the general suit, if they involve interests in, or liens on the property sought to be partitioned. Bogardus vs. Parker, 7 How., 305.

(w.) EJECTMENT.

The essentials of this action, involving of necessity the essentials of most of the defences which are pleadable in bar of it, have been already fully entered upon in book VII., chapter II., section 150.

It is clearly competent for a defendant in ejectment to set up in his answer, any equitable title or defence, available in bar of the plaintiff's claim. The amendment of section 149 puts this, in fact, beyond a doubt. The principle is carried out in Phillips vs. Gorham, 17 N. Y., 270; Crary vs. Goodman, 2 Kern., 266; Thurman vs. Anderson, 30 Barb., 621; Requa vs. Holmes, 19 How., 430; McCray vs. McCray, 30 Barb., 633; Bigelow vs. Finch, 11 Barb., 498. See also Wooden vs.. Waffle, 6 How., 145; 1 C. R. (N. S.), 392, and Dickinson vs. Smith, 25 Barb., 102. These cases abundantly overrule the doubts to the contrary, entertained in Hill vs. McCarthy, 3 C. R., 49; Otis vs. Sill, s Barb., 102; Cochran vs. Webb, 4 Sandf., 653, and Crary vs. Goodman, 9 Barb., 657; reversed by Crary vs. Goodman, 2 Kern., 266, supra.

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