
    WILLIAM SCHAUS, Plaintiff and Appellant, v. THE MANHATTAN GASLIGHT COMPANY, Defendant and Respondent.
    Before Freedman, Curtis, and Van Vorst, JJ.
    
      Decided June 28, 1873.
    Although, under the requirements of section 149 of Code, new matter must be pleaded, and consequently the defences of payment, release, accord and satisfaction, arbitrament, and many other entire and partial defences, 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 plaintiffs allegation is untrue (Wheeler v. Billings, 38 N. Y. 263; Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430).
    Appeal by plaintiff from judgment entered in favor of -.defendant upon the verdict of a jury, and from the order denying plaintiff’s motion upon the judge’s minutes for a new trial.
    
      F. R. Sherman and A. R. Rodgers, for appellant.
    
      Henry H. Anderson, for respondent.
   By the Court.—Freedman, J.

This action was "brought to recover damages alleged to have been sustained by plaintiff from water which entered the plaintiff’s cellar, as claimed by plaintiff, through the negligence of the defendant in opening a ditch in front of plaintiff’s premises for laying gas-mains in the street. On the trial evidence was admitted against plaintiff’s, objection and exception, which tended to show that the

water which caused the injury did not come from the ditch, but from the sewer or the connection with the sewer, and that the injury was the result of a defective sewerage system in that vicinity. We think the evi- .< dence was properly received. Although, under the requirements of section 149 of the Code, new matter must be pleaded, and consequently the defences of payment, release, accord and satisfaction, of arbitrament, and many other entire and partial defences, 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 tire 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. N. S. 389; S. C., 44 How. 10).

The case having been submitted to the jury, under a charge to which no valid objection lies, and plaintiff’s exception 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, J.J., concurred.  