Van Epps v. Harrison

1 Denio 246

Opinion

By the Court, Bronson, Ch. J.

As the executory contract to sell, on which the bond was given, had been executed on the part of the pkintiff by a conveyance of the land, we held when the case was before us on a former occasion, (5 Hill, 63,) that the evidence offered by the defendant was not an entire bar to the action; but could only go in abatement of damages. It follows from this doctrine that the notice was informal in calling this a bar. But the notice also states that the evidence would be given in defence of the action. It is a defence, so far as it goes—as much so as a set-off, sufficient to satisfy a part of the plaintiff’s demand—and I think the evidence should have been received. The notice would have been more strictly accurate had it stated that the evidence would be given in abatement or 'defalcation of damages. But where there is no defect in matter of substance, courts do not.require all the form in a notice which is necessary in a special plea.

New trial granted.