
    Rogers against Burk.
    NEW YORK,
    Oct. 1813.
    En an action or covenant on an agreement frame1 of a'6 enclose the same, on or betore the 1st of October. The defendant pleaded that he did put up the frame, &e. ou or before the 1st October, to wit, on the 1st June, and was ready and willing, and tendered and offered the plaintiff to enclose the same, See.; but that the plaintiff did not furnish the necessary materials, &c. according to his agreement, 8ze, The plaintiff replied, that he did furnish the materials, &e, and did and performed all things on his part, See, (as before stated in his declaration,) yet the defendant, at the time and place mentioned in his plea, did not put up and raise the frame of the house, bte.; nor did he, See tender or offer to enclose, &c
    On special demurrer, this replication was held bad, for traversing the time and place stated in the j>Iva which were immaterial $ and introducing averments of performance, before made in the declaration, thereby loading the replication with multifarious and unnecessary matter, and putting in issue several and distinct matters of fact.
    THIS was an action of covenant. The plaintiff in Ms decla- . *■ ration stated an agreement, in which me defendant covenanted to Put UP and enclose for him, (the plaintiff,) a house and kitchen, &c. according to a draft, &c. in a good, substantial and workmanlike manner, &c. on or before the 1st October (then) instant; that ' ' 
      ¿lie plaintiff was to furnish the timber and materials, &c.; and he averred that he did furnish all the timber and materials, &c. requested, according to the agreement, 8cc.; and did well and truly perform all things on his part to be performed, &c.; but that the defendant did not put up and enclose, &c. on or before the 1st October then next, &c. according to the said agreement, but hath refused, &c. By reason whereof, &c.
    The defendant pleaded, 1. Non est factum ; 2. That the plaintiff did not furnish the timber anti materials requisite, &e. according to the agreement.
    3. That the defendant, before the 1st October, to wit, on the 1st June, did put up, raise and erect a house and kitchen according to the bill, estimate and draught, annexed to the agreement, in a good, substantial and workmanlike manner, See. and was then and there ready, atid tendered and offered to the plaintiff, to enclose the said building, &c. in manner and form, &c, according to the said agreement, and had always been ready and willing, Sec. but the plaintiff did not furnish the materials necessary to enclose the said buildings.
    To the third plea the plaintiff replied, that he, the plaintiff, did furnish and have brought to the place the materials necessary to enclose the said building, as soon as the defendant wanted them, &c. and did well thereby perform all and singular, Sec. he was to do and perform, according to the tenor and effect of the said agreement. Yet the defendant, at the time and place contained in the said plea, did not put up, raise and erect, on the, &c. the frame of a house and kitchen according to, Sec.; nor did he tender and offer to the plaintiff to enclose the said building, as the defendant has in his said plea alleged, Sec. but refused, &c.
    To this replication there was a special demurrer; because the replication attempts to put in issue several and distinct matters, to wit, Sec.; and because, instead of simply denying the material allegations in the defendant’s plea, or averring a performance of the condition precedent to be performed on bis part, and concluding with a formal and apt traverse of the said plea, or the facts therein contained, the plaintiff inartificially and unnecessarily sets forth, in his replication, that he had done and performed all he was to do and perform, and that the defendant refused to enclose the building, Sec. thereby attempting to put in issue an immaterial fact, &c. § and that the replication is. in other respects, uncertain, multifarious, insufficient, See.
    
      
      H. Jones and Rogers, in support of the demurrer.
    
      E. Williams, contra.
   Per Curiam.

The replication must be taken, upon special demurrer, to be defective. It traverses the time stated in the plea in which the frame was erected, whereas the day was not material.' It should, also, have been confined to a traverse of the allegation of performance by the defendant. By traversing the tender stated by the defendant, and by introducing averments of the performance of the covenant on the part of the defendant, (which were wholly unnecessary^ ás they were contained in the declaration,) the replication was loaded with multifarious and unnecessary matter, and put in issue distinct matters of fact. There must be judgment for the' defendant, with leave to the plaintiff to amend on the usual terms.

Judgment for the defendant  