
    Semanthe S. Isham, Executrix, etc., Respondent, v. Sarah A. Davidson, Appellant.
    (Argued February 6, 1873;
    decided February 18, 1873.)
    In an action upon two promissory notes, defendant’s answer alleged in • substance that the notes were given in part payment of a farm sold by plaintiff’s testator to defendant; that defendant was induced to purchase by means of false and fraudulent representations as to the territorial extent of the farm; that the territory falsely represented to be embraced in the farm would have enhanced its value more than $5,000, and that defendant had sustained damages to that amount. No reply was interposed. Upon trial defendant moved for judgment on the pleadings. No objection was made of want of proof of damages. The motion was denied, and judgment directed for plaintiff. Held, error; that the answer set up matter constituting a counter-claim, which was admitted by the failure to reply. That no objection having been made, and the court not having placed its decision upon the ground of want of proof of damages, it must be deemed to have decided that the answer did not set forth a counter-claim. (Church, Oh. J., and Grover, J., dissenting.)
    The rule applicable to motions for a nonsuit, which requires the defendant to specify objections, which if specified could be obviated by proof, is equally applicable where the defendant becomes the actor in seeking to enforce a counter-claim.
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.
    This action was brought upon two promissory notes, each of $1,500, given by defendant to Pierrepont Isham, plaintiff’s testator.
    The answer alleged that the notes were given in part payment of a farm conveyed by said Isham to defendant, situate in Bergen county, Hew Jersey. That to induce defendant to purchase, said Isham falsely and fraudulently represented that a certain knoll or rise of- ground, not belonging to the farm, was a part of it, and was included in the.conveyance. That said knoll, as a part of the farm, would enhance its value more than $5,000, and that relying upon and believing said representations, defendant purchased. That after the purchase and giving the notes defendant learned that said knoll was not embraced in the farm, and was not included in the conveyance, and defendant averred that he had sustained damages in consequence to the amount of $5,000, which she demanded to recover by way of counter-claim. Ho reply was interposed.
    Upon the trial defendant’s counsel moved for a judgment on the pleadings and counter-claim, which motion was denied, and defendant excepted. Defendant’s counsel then requested the court to direct the jury to find a verdict for the amount of the counter-claim set forth in the answer, less the amount of the promissory note, and interest, which request the court refused, and defendant excepted. The defendant refused to call any witnesses. The court thereupon directed the jury to find a verdict for the amount of the notes and interest; to which direction defendant’s counsel excepted.
    A verdict was rendered in accordance with the instructions.
    
      S. O. Conable for the appellant.
    The answer set up a counter-claim. (Code, § 150, sub. 1; Bates v. Rosekrans, 37 N. Y., 409; Pattison v. Richards, 22 Barb., 146; Leavenworth v. Packer, 52 id., 132; Lemon v. Trull, 13 How., 248; S. C., aff’d, 16 id., 576 ; Hicksville R. R. v. L. I. R. R., 48 Barb., 355.) The answer not being denied by a reply, every material allegation of new matter, constituting a counterclaim for the purposes of the action, will be taken as true. (Code, § 168; Lawrence v. B'k of Republic, 3 Rob., 142; Fry v. Bennett, 5 Sandf., 54; Mayor v. Cunliff, 2 N. Y., 167.)
    
      W. P. Prentice for the respondent.
    Defendant, if his fact warranted a counter-claim, should have proved his damages. (McKenzie v. Farrell, 4 Bosw., 202; Raymond v. Traffarn, 12 Abb., 54; Gilbert v. Rounds, 14 How., 47; Connoss v. Mier, 2 E. D. S., 314; Hackett v. Richards, 3 id., 13; Newman v. Otto, 4 Sandf., 668; Sedgwick on Dam., 578; McKyring v. Bull, 16 N. Y., 303.) The answer set forth no defence. ( Wright v. Delafield, 25 N. Y., 498; S. C., 23 Barb., 498; Lewis v. McMillen, 41 id., 420; Emerick v. Kohler, 29 id., 169; McBurney v. Cutter, 18 id., 203; Davidson v. Remington, 12 How., 310; Batterman v. Pierce, 3 Hill, 176; Tymason v. Bates, 14 Wend., 672; Cassidy v. Le Fevre, 45 N. Y., 563.) No reply was necessary. (Van Valen v. Lapham, 13 How., 243.) It was competent for plaintiff to wait and raise the question on the trial. (Smith v. Countryman, 30 N. Y., 676; Montgomery County B’k v. Albany City B’k, 7 id., 464; Duffy v. Duncan, 35 id., 189; Thompson v. Sickles, 46 Barb., 49.) Ho counter-claim was set out. (Vassear v. Livingston, 13 N. Y., 252; Davidson v. Remington, 12 How., 310; Schubart v. Harteau, 34 Barb., 450; Nichols v. Boerum, 6 Abb., 290.) Ho cause of action against plaintiff is set out in defendant’s answer. (Wright v. Delafield, 23 Barb., 498; S. C., 25 N. Y., 266; Lewis v. McMillen, 41 Barb., 420; Farnham v. Hotchkiss, 2 Keyes, 9.) Hothing short of an eviction will amount to a breach of warranty. (Batterman v. Pierce, 3 Hill., 176; Lamerson v. Marvin, 8 Barb., 16; Burt v. Davey, 40 N. Y., 283.) Description in a deed of land cannot be departed from by parol evidence of intent. (Emerick v. Kohler, 29 Barb., 169; Drew v. Swift, 46 N. Y., 204.) A new trial will not be granted merely to give plaintiff an opportunity to recover nominal damages. (Brantingham v. Fay, 1 J. Cas., 256; Hopkins v. Grinnell, 28 Barb., 533; Devendorf v. Wert, 42 id., 228.)
   Rapallo, J.

Section 168 of the Code provides that every material allegation of new matter in an answer, constituting a counter-claim, not controverted by a reply, shall, for the purposes of the action, be taken as true. The answer in this case does, in our judgment, set up matter constituting a counter-claim, viz., false and fraudulent representations on the part of the original plaintiff in respect to the territorial extent of the farm sold and conveyed, whereby the defendant was induced to purchase it and give the notes in suit in part payment of the purchase-money (Whitney v. Allaire, 4 Den., 554; S. C., 1 N. Y., 305.) The answer further alleges, in substance, that the knoll which was thus falsely and fraudulently represented to be embraced in and to be part of the farm sold, would, if the representations had been true, have increased the value of the farm more than $5,000; and that her belief from such representations, that she was obtaining this knoll, induced the defendant to make the purchase.

The answer then concludes with a general allegation of damage to the amount of $5,000, which the defendant demands to recover by way of counter-claim.

No reply was put in to this counter-claim. The plaintiff went to trial in that condition of the pleadings. At the trial the defendant moved for judgment on the counter-claim; the motion was denied, no ground being stated or specific objection made, and directed a verdict for the plaintiff for the full amount of the notes.

It is now claimed on the part of the plaintiff that, conceding that the allegations in the answer constitute a counterclaim, and that their truth is admitted by their failure to reply, yet the allegations respecting the amount of damage sustained by the defendant are not material and are not admitted, and that therefore the defendant, not having proved the amount of damages on the trial, could only have been allowed nominal damages.

The counsel for the defendant evidently relied upon the specific allegation of the amount to which the value of the farm would have been enhanced had the representations been true, and the admission of this allegation by the failure to reply, as establishing a fact from which the damages could be computed, and therefore omitted to call any witnesses. It is questionable whether this allegation was of a material fact and admitted by the failure to reply, or whether it amounted to more than a general allegation of damage. There is a difference of opinion on that point, but no such point appears by the case to have been taken at the trial.

The defendant’s motion for judgment on the counter-claim was decided in toto, without any objection being made of want of proof of the amount of damages. The court did not place its decision on that ground, but must be deemed to have decided that the matter set forth in the answer did not constitute a counter-claim, for if the ground of decision had been that the amount of damages was not proved, the court would have directed the allowance at least of nominal damages. The rule applicable to motions for nonsuit, which requires the defendant, to specify objections which, if specified at the time, could be obviated by proof, is applicable to the case of a defendant who becomes actor in seeking to enforce a counterclaim. If (as we must infer the fact to have been) the decision below went upon the ground that the answer disclosed no counter-claim, proof of the amount of damages would have useless and would not have aided the defendant. If the want of such proof was the ground of objection, it should have been specified, so that the defendant might have supplied it, and not have ben misled as to the real nature of the objection.

We have nothing to do with the iona fides of the defence, and have no right to speculate upon that subject. The law requires that the material allegations of this answer, it not being replied to, be taken as true. The plaintiff had the option to deny them or allow them to pass as true, and voluntarily chose the latter course. If true, the defendant had a counter-claim, and was entitled to the same opportunity to make it available which she would have had were she plaintiff instead of defendant. She is consequently entitled to the benefit of the rule, that objections to a recovery which can be obviated by proof must be specified at the trial, in order to be available on appeal.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Church, Ch. J., and Grover, J., dissenting.

Judgment reversed.  