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).

a. 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, 5Sand.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 (3$ 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, ő 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 (id.) 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. Y. 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 "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.

a. Leave and license.—A defense of leave and license must be pleaded (Haight v. Badgeley, 15 Barb. 499; Beatty v. Swarthout, 32 Barb. 293); it need not state any consideration (Pierrepont v. Barnard, 6 N. Y. 288). Leave and license is no defense to an action on a breach of bond by a deputy-sheriff by neglecting to return a writ, &c. (Hart v. Brady, 1 Sand. 626; Thomas v. Hubbell, 18 Barb. 13).

b. Matter occurring after action commenced.—Where matter of defense occurs after the commencement of the action, and before answer, it may be set up by answer (2 Edw. Ch. R. 110; 3 How. 414). Thus, if intermediate the commencement of the action and the time of putting in the answer, the defendant has satisfied the plaintiff's claim [whether it be on contract or tort], he may set up this fact in his answer, as a defense to [the further maintenance of] the action (Willis v. Chipp, 9 How. 568). So if defendant is discharged under an insolvent act (Price v. Peters, 15 Abb. 197; and see Harris v. Hammond, 18 How. 123; Wiltsie v. Northam, 3 Bosw. 162; Ashley v. Marshall, 29 N. Y. 494, and Supplemental pleading).

c. Nonjoinder of party defendant.-If a defendant insists that others, who are jointly liable with him, should be joined in the action, he must not only plead the nonjoinder, but in so doing must point out in his answer all those who, he claims, should be made party defendant (Fowler v. Kennedy, 2 Abb. 351; Wigand v. Sichel, 3 Keyes, 120; 33 How. 174); should allege that such persons are alive (Wooster v Chamberlain, 28 Barb. 602). But the defect is cured by proof on the trial, without objection, that the defendant nonjoined is living (id.); and if the answer states the residence of the party omitted, his being alive will be inferred (Taylor v. Richards, 9 Bosw. 679).

d. Plaintiff not the real party in interest.—To an action on a promissory note,-payee against maker, the answer set up that "the plaintiff is not the sole owner and holder of the note, but owns the same jointly with one A. C. W., and therefore the plaintiff is not individually entitled to recover against the defendant,"-on motion the answer was adjudged "clearly frivolous" (Tompkins v. Acer, 10 How. 309); an answer which stated that the plaintiff is not the holder or owner of the note sued on, and that E. F. B. is the owner and party in interest, was on demurrer held insufficient (Brown v. Ryckman, 12 id. 313; contra, see Tamisier v. Cassard, 17 Abb. 187; Arrangois v. Fraser, 2 Hilton, 244). So an answer which alleged that the plaintiff is not the real party in interest (Fosdick v. Groff, 22 How. 158); or that the plaintiff "is not the lawful holder and owner of the note" is insufficient to admit evidence that the plaintiff is not the "holder and owner" (Seel y v. Engell, 17 Barb. 530); and so, too, an answer which alleged that the plaintiff is not the real party in interest therein, nor is he an executor or administrator, or a trustee of an express trust, or a person expressly authorized by statute to sue without joining with him the person for whose benefit the suit is prosecuted,was on demurrer held insufficient for not stating the facts on which the defendant relied to show that the plaintiff was not the real party in interest (Russell v. Clapp, 7 Barb. 482; Bentley v. Jones, 4 How. 202).

e. Escape.—In an action against a sheriff for an escape founded on the statute and not merely for damages, the insolvency of the prisoner is no defense (Barnes v. Willett, 12 Abb. 448; 35 Barb. 514; and see Renick v. Orser, 5 Bosw. 384; McCreery v. Willett, id. 643; Loosey v. Orser, id. 391).

Not

f. Eviction.-An answer setting up an eviction as a defense must state an eviction of the defendant from the demised premises, and the keeping him out of possession until after the rent became due (Vernam v. Smith, 15 N. Y. 333; Edgerton v. Page, 14 How. 116; 5 Abb. 1; and see Peck v. Hiler, 14 How. 155; Carter v. Burr, 39 Barb. 59; Moffat v. Strong, 9 Bosw. 57). giving possession is not an eviction (Hurlbut v. Post, 1 Bosw. 28). See Rent. g. Equitable defenses.-Under the head of equitable defenses are included all matters which would have authorized an application to the court of chancery for relief against a legal liability, but which at law could not have been pleaded in bar (Dobson v. Pearce, 12 N. Y. 166; 1 Abb. 103).

a. A defense purely equitable may be interposed to a cause of action strictly legal (Foot v. Sprague, 12 How. 355; Hunt v. Farmers' Loan & Trust Co. 8 ið. 418; Burgett v. Bissell, 5 How. 192; Hinman v. Judson, 13 Barb. 629; Hicksville R. R. Co. v Long Island R. R. Co. 48 Barb. 355). A defense that a deed absolute on its face was intended as a mortgage is available in any action (Despard v. Walbridge, 15 N. Y. 379).

b. Action on a judgment.—In an action on a judgment the defendant can set up as a defense no matter which existed anterior to the judgment (Biddle v. Wilkins, 1 Peters, 686; 4 Abb. 293, n.); he may set up as a defense that the judgment was obtained by fraud (Dobson v. Pearce, 12 N. Y. 156). The answer of no such record to an action on a judgment of a sister State, draws nothing into issue except the existence of the record (Goodrich v. Jenkins, 6 Ham. 43). Such an issue is for the court, not for a jury (Barker v. McClure, 2 Blackf 14). A judgment of a State court has the credit, validity, and effect, in every other State within the United States, which it had in the State where it was rendered, and whatever pleas would be good to a suit thereon in such State, and none others, can be pleaded in any other court within the United States (Hampton v. Cornell, 3 Wheat. 234; Mills v. Duryee, 7 Cranch, 481).

c. Fraud.-To render a defense of false representations complete, it must be alleged in addition either that the defendant was misled by the representations, or that his belief in their truth induced him to enter into the contract (Van de Sande v. Hall, 13 How. 458). Where fraud is set up as a defense to an action on contract, the defendant must aver, in his answer, that he has done all in his power to restore the plaintiff to his former condition, otherwise he cannot prove the fact on the trial (Derendorf v. Beardsley, 23 Barb. 657). If one, when sued for a breach of contract to employ another, relies on the defense that he was induced to make the contract by fraud of the plaintiff, he should so state in his answer; if he discharged the employee for improper conduct he should state what that impropriety was; if for a failure to do the work contracted to be done, he should state in what particular, and the work which he failed to do must appear to be such as is required by the contract (Sugg v. Blow, 17 Mo. R. [2 Ben.] 359).

d. Payment.—The proper mode for a defendant to avail himself of the presumption of payment arising from lapse of time is a plea of payment Martin v. Gage, 9 N. Y. 398; N. Y. Life Ins. and Trust Co. v. Covert, 6 Abb. N. S. 154). An answer of payment not stating when the payment was made, will be construed as a payment before the commencement of the action (Boyd v. Weeks, 2 Denio, 322). It should state that the payment was after the cause of action accrued, but the day of payment is not necessary to be stated (Beesley v. Dolley, 6 Bing. N. C. 37). An answer of payment to the wife of the plaintiff, and acceptance by her in satisfaction, must allege that she was authorized by the plaintiff to receive payment (Offley v. Clay, 2 Man. & G. 172) An answer that the defendant gave his check to the plaintiff for the amount due, that the plaintiff retains it, and it is still outstanding, does not amount to a payment nor to any defense, Such an answer to constitute a defense should also allege [that the check had been paid, or] that the plaintiff had parted with the control of it (Strong v. Stevens, 4 Duer, 668; Bradford v. Fox, 16 Abb. 51; Hoogland v. Wight, 7 Bosw. 394). The giving a negotiable note, and its acceptance by the plaintiff, although not payment is suspension of the right to sue (Gellor v. Seixas, 4 Abb. 103).

e. In an action against the maker of a note, an answer which alleged that the note was paid and satisfied to plaintiff by a third person for whose accommodation it was made will warrant evidence of any facts amounting to actual payment by such third person (Farmers B'k of L. I. v. Sherman, 6 Bosw. 181).

f. The answer of payment does not admit the amount due, as claimed, if the defendant does not prove his plea; the plaintiff must prove the amount due as on a judgment for default of an answer (5 Hill, 290).

g. Payment after action commenced (see 27 How. 187).

a. Performance.—Under an averment of performance by a defendant of his part of the contract, the breach of which is alleged as a cause of action, he cannot give evidence in excuse of nonperformance (Oakley v. Morton, 11 N. Y. 33; Crandall v. Clark, 17 Barb. 169; Hosley v. Black, 28 N. Y. 438). A plea in excuse of performance may be pleaded (Webb v. James, 8 M. &. W. 645; Clark v. Crandall, 27 Barb. 73; O'Reilly v. Mut. Ins. Co. 2 Abb. N. S. 167); but such a defense cannot be admitted under a plea that the plaintiff was injured of his own wrong (White v. Ansdell, 1 M. & W. 350). See Tender. b. Statute.-Where a statute is relied upon to defeat a common-law right, the facts rendering the statute applicable must be distinctly alleged (Miller v. Roessler, 4 E. D. Smith, 234). "In setting up a defense under a public statute, it is not necessary that the pleader should set forth the statute in his plea, or that he should allege the existence of a statute of which the court is bound to take notice judicially. It is sufficient for him to state the facts which are necessary to bring the case within the operation of the statute" (Bogardus v. Trinity Church, 4 Paige, 197).

c. Statute of limitations.-An answer which stated that plaintiff ought not to have his action against defendant, "because the cause of action mentioned in the complaint did not occur to plaintiff at any time within six years next before the commencement of the action,"-held a sufficient answer (Bell v. Yates, 33 Barb. 627). An answer of the statute by an executor should not notice the eighteen months which by 2 R. S. 448, § 8, is in effect added to the six years' limitation (Benjamin v. De Groot, 1 Denio, 151).

d. Tender.-As a general rule, a tender must be unconditional. But negotiable paper is an exception. The tender of payment of a negotiable note may be coupled with the condition of its delivery (Wilder v. Seelye, 8 Barb. 408). An answer of tender before action should, besides alleging the tender and refusal, also allege that the defendant is still ready, and that he has always been ready, to pay (Wilder v. Seelye, 8 Barb. 408; Kortright v. Cady,"5 Abb. 358; 23 Barb. 490; Livingston v. Harrison, 2 E. D. Smith, 197; Brown v. Ferguson, 2 Denio, 196). And the amount tendered must be brought into court (id.; Simpson v. French, 25 How. 464; Livingston v. Harrison, 2 E. D. Smith, 157). And the answer must allege the payment into court (Hill v. Place, 5 Abb. N. S. 18; Simpson v. French, 25 How. 464). The omission by the defendant to pay into court, and give notice thereof, is an irregularity merely, and it is waived by the plaintiff retaining the answer and going to trial without objection (Knight v. Beach, 7 Abb. Ñ. S. 241). By bringing money into court a defendant does not waive a tender before action commenced, and which he sets up as a defense (Wilder v. Seelye, 8 Barb. 408); but the plaintiff is in any event entitled to the amount tendered (Wood v. Perry, 1 Barb. 115; Logue v. Gillick, 1 E. D. Smith, 398); as to the tender on note payable in specific articles, see Billings v. Vanderbeck, 23 Barb. 546; Simpson v. French,

25 How. 464.

e. A defense of tender after action commenced, must state the amount tendered, which should include interest and costs to the time of the tender (The People v. Banker, 8 How. 258); and that amount must be paid into court (id.; and see 2 R. S. 553, §§ 20-23; see 2 Hill, 538).

f. Evidence of the waiver of a tender by the opposite party is competent and sufficient to support the averment of a tender (Holmes v. Holmes, 9 ̊N. Y. 525). This, however, has relation to a tender forming no part of the contract, and to cases in which the tender is a substitute allowed by law for an actual performance, prevented by act of the opposite party. But where a party covenants to make a tender, an allegation of performance of that covenant would not be sustained by evidence of a waiver (id.; see Oakley v. Morton, 11 N. Y. 26). See Performance.

9. Usury.-Is a personal defense, and is available only to the borrower o his personal representatives (Chamberlain v. Dempsey, 1 Trans. Ap. 257). A defense of usury must aver clearly every particular necessary to establish the