Quinn v. Lloyd, 41 N. Y., 349.

cult to suppose that they intended the section to receive one con- 41 struction in one class of actions and a different one in another.

My conclusion, therefore, is, that section 149 should be so construed as to require the defendants, in all cases, to plead any new matter constituting either an entire or partial defence, and to prohibit them from giving such matter in evidence upon the assessment of damages when not set up in the answer. Not only payment, therefore, in whole or in part, but release, accord and satisfaction, arbitrament, etc., which may still, for aught I see, be made available in England in mitigation of damages, without plea, must here be pleaded. In this respect, our new system of pleadings under the Code is more symmetrical than that prescribed by the recent rules adopted by the English judges.

The judgment of the Superior Court of Buffalo should be affirmed.

SHANKLAND, J., delivered an opinion to the same effect; CoмSTOCK, BROWN and BowEN, JJ., concurred; PAIGE, J., expressed no opinion, and DENIO, Ch. J., and JOHNSON, J., dissented. Judgment affirmed.

42

QUINN v. LLOYD.

New York Court of Appeals, 1869.

[Reported in 41 N. Y., 349.]

If the complaint is framed to sue for a balance, as such, expressly admit- ŕ ting payments to have been made, and not showing the amount originally due, payments may be proved under a general denial.

The complaint alleged:

I. That, in the lifetime of said Richard Quinn, and sometime in the month of August, in the year 1863, in the city of New York, in the State of New York, the above defendant engaged the said Richard Quinn to proceed to England, and there to perform certain work, labor, and services as a surveyor and draughtsman, for which the said defendant promised to pay the said Richard Quinn the sum of $15 per week in American gold

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Quinn v. Lloyd, 41 N. Y., 349.

II. That, in accordance with such engagement, the said Richard Quinn proceeded to the city of London, in England, and there performed certain work, labor, and services for the defendant as a draughtsman and surveyor, whereby the said defendant became, on the 15th day of July, 1864, indebted to the said Richard Quinn in the sum of $333.07, in American gold coin, being the balance remaining due, after sundry payments made by defendant to said Richard Quinn.

That, on the 10th day of June, in the year 1864, the said Richard Quinn duly demanded payment of the said sum of the defendant, but no part thereof has been paid.

That, on the said 10th day of June, 1864, the said sum of $333,07, in American gold coin, was equivalent to the sum of $65934 currency, in which sum the defendant is now justly indebted to this plaintiff, as administrator, as aforesaid.

[Here followed a second cause of action for such services alleged generally.]

That, on the 26th day of May, in the year 1867, the said Richard Quinn died intestate, and that on the 27th day of June, 4 1867, letters of administration upon the estate of said Richard Quinn, deceased, were duly issued and granted to this plaintiff by the Surrogate of the City and County of New York, appointing this plaintiff administrator of all and singular of the goods and chattels, rights and credits, which were of said deceased, and that the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of such office. WHEREFORE, etc.

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The contents of defendant's answer were:

"That he denies each and every allegation of the said complaint, except as to the alleged death of Richard Quinn, and the appointment and qualification of the plaintiff as his administrator, of which allegations this defendant has no knowledge or information sufficient to form a belief."

At the trial, defendant's counsel offered in evidence certain receipts given by deceased during his lifetime to defendant, for moneys paid by said defendant to said deceased on account.

Objected to by plaintiff's counsel, on the ground that, under a

Quinn v. Lloyd, 41 N. Y., 349.

general denial, evidence of payment as a defence to the action, 6 or of partial payment in mitigation of damages, is inadmissible. Objection sustained. Defendant's counsel excepted.

The defendant's counsel then moved to amend his answer, so as to admit the evidence, as follows:

"The defendant admits that the said Richard Quinn, deceased, performed certain work, labor and services for the defendant, for which he has been fully paid, except the sum of about two hundred dollars, which the defendant has never refused to pay." Plaintiff's counsel opposed the motion on the following grounds:

First. The answer is intended to set up a defence of new matter, by way of confession and avoidance; but the answer does not confess the allegations as set out in the plaintiff's complaint. It merely admits that the deceased performed certain work, labor, etc.; this answer would be stricken out, on motion, as frivolous.

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Second. By section 173 of the Code of Procedure, the court, or a referee, on the trial of a cause, has no power to allow an amendment of the answer which would amount to an entire change of defence; which the defence of payment would in this S case be.

Motion denied, and defendant's counsel excepted.

The case was then submitted to the referee, upon whose report judgment was entered for the plaintiff.

The defendant appealed.

The Superior Court at General Term affirmed the judgment upon the merits without passing upon this question. [Reported in 1 Sweeney, 253.]

The Court of Appeals reversed the judgment.

LOTT, J. The referee before whom the issues were tried erred in excluding the receipts given by the deceased in his lifetime to the defendant, for moneys paid by him to the deceased on

account.

Conceding the general rule to be that payments, either as an entire defence or in mitigation of damages, must be pleaded, this case is an exception to it.

[The learned judge here quoted from the complaint.]

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Quinn v. Lloyd. 41 N. Y., 349.

There is no statement showing when the work commenced or ended, or of the time employed, or from which it can be inferred. There is, therefore, not a fact stated by which it can be known to how much compensation the deceased was entitled at the price he was to be paid. The averment that there was an indebtedness by the defendant to the deceased, as "the balance remaining due after sundry payments made by defendant to said Richard Quinn," and the denial of all the allegations in the complaint as to the employment and indebtedness, involved an issue upon the facts above stated and denied, not only of the agreement and of the time which the deceased worked, but necessarily of the different payments made, so as to determine what, in fact, was the balance of the defendant's debt. That balance could not be ascertained without an inquiry as to the amount of the payments, as well as the value of the work performed. The case of McKyring. Bull, 16 N. Y., 297, [s. c., p. 450 of this vol.], relied on by the respondent, cannot be considered an authority to sustain the referee's decision and the judgment of the court below. In that case, the complaint alleged that the plaintiff 12 entered into the employment of the defendant on a particular day, and continued there in doing labor and service for him to a specified and fixed date, and then averred that such work and services were worth the sum of $650, and then it concluded as follows: "That there is now due to this plaintiff, over and above all payments and offsets on account of said work, the sum of one hundred and thirty four dollars, which said sum defendant refuses to pay." It will be seen by this statement that the term of service and its value were both alleged, from which it appeared that a much larger sum had 13 become payable to the plaintiff than he claimed. The learned judge who gave the prevailing opinion in the case says, in reference to the allegation, that there was due to the plaintiff at the commencement of the suit, over and above all expenses, etc., the sum there named, "is mere legal conclusion from the facts previously stated. Its nature is not changed by the addition of the words 'over and above all payments.' No new fact is thereby alleged. The plaintiff voluntarily limits his demand to a sum less than that to which under the facts averred, he would be entitled."

Quinn v. Lloyd, 41 N. Y., 349.

In the case under review, as I have before stated, no facts are 14 alleged from which it can be known what the work, at the stipulated price agreed to be paid, was worth, and' consequently there is nothing to show that the claim made was less than upon the facts stated he was entitled to.

We are not to be controlled by a decision upon facts so materially different in all respects from those in this case. It may be proper to add that two of the judges, DENIO, Ch J., and JOHNSON, J., dissented from that decision, and PAIGE, J., expressed no opinion.

My conclusion, therefore, is, that on the ground above stated (and without expressing an opinion on the other questions presented), the judgments appealed must be reversed, and a new trial ordered, costs to abide the event.

WOODRUFF, J. The plaintiff, by his complaint herein, alleges that the defendant engaged the plaintiff's intestate to proceed to England and there perform work, labor, and services as a surveyor and draughtsman, for which he promised to pay him fifteen dollars per week in American gold coin. That, in accordance with such engagement the intestate proceeded to England, and there performed certain work, etc., whereby the defendant became on the 15th of July, 1864, indebted to the intestate in the sum of $333.07 in American gold coin, being the balance remaining due after sundry payments made by the defendant.

This allegation, I think, invited an issue upon the question whether a balance of $333.07 was or was not due, and the answer of the defendant put that allegation in issue.

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It was wholly unnecessary for the plaintiff to sue for a balance as such; he might allege the contract, performance on his part and claim payment, and then, if the defendant desired to prove 17 payments, he must allege payment in his answer; but where the plaintiff sues for a balance, he voluntarily invites examination into the amount of indebtedness, and the extent of the reduction thereof by payments, etc.

It was, therefore, error to exclude proof of payments made by the defendant on account, and the receipts given by the intestate therefor.

[A minor ruling on a question not involving the pleadings is here omitted.]