Schaus v. Manhattan Gas Light Co.

14 Abb. Pr. 371, 45 How. Pr. 481, 4 Jones & S. 262

• Court: The Superior Court of New York City
• Decided: June 15, 1873
• Status: Published

Opinion

By the Court.—Freedman, J.

[After stating above facts.]—We think the evidence was properly received. Although, under the requirements of section 149 of the Code, new matter must be pleaded, and consequently the defenses of payment, release, accord and satisfaction, of arbitrament, and many other entire and partial defenses, which, while they do not deny the cause of action stated in the complaint, yet seek to avoid or to bar it, and which were formerly available under the general issue, must now be set up in the answer, before evidence in support thereof can be received (McKyring v. Bull, 16 N. Y., 297), yet under a general or specific denial of any part of the complaint which the plaintiff is required to prove to maintain his action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show that plaintiff’s allegation is untrue (Wheeler v. Billings, 38 N. Y., 263 ; Greenfield v. Mass. Mutual Life Ins. Co., 47 N. Y., 430).

The testimony of the parties was conflicting, and therefore presented a proper case for the jury. Plaintiff conceded that, by refraining from moving for the direction of a verdict subject to an assessment of damages (Rowe v. Stevens, 12 Abb. Pr. N. S., 389).

The case having been submitted to the jury under a charge to which no valid objection lies, and plaintiff’s exceptions to the refusal of the court to charge otherwise, as requested, and to the rulings of the court upon the questions of evidence that arose during the trial, appearing to be clearly untenable, the judgment and order appealed from must be severally affirmed, with costs.

Curtis and Van Vorst, JJ., concurred.

Judgment accordingly.