
    Henry G. Gabay, Respondent, v. John Edwin Doane and Others, as Executors, etc., of John W. Doane, Deceased, Appellants.
    
      Occurrences since an action was begun may be set up as a pa/rtial defense in mitigation of damages— such defense is not limited to actions to recover damages for breach of promise to man'y, or for personal injury or injury to property.
    
    Where a vendor of real estate brings an action against his vendee to recover damages resulting from the action of the vendee in delivering to him, in part payment of the purchase price, a note and mortgage purporting to be signed by John Robinson and Edward F. Riley, but which had not, in fact, been signed by Riley, the vendee may, under section 508 of the Code of Civil Procedure, set forth in his answer, as a partial defense and in mitigation of damages, occurrences which took place after the action was begun and which had the effect of validating the note and mortgage and of making them enforcible securities.
    Section 508, relative to the pleading of partial defenses, does not limit the right to interpose such defenses to actions to recover damages for a breach of promise to marry or for a personal injury or an injury to property.
    Appeal by the defendants, John Edwin Doane and others, as executors, etc., of John W. Doane, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30 th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the second defense contained in the answer.
    
      Edward B. Clinch, for the appellants.
    
      J. Culbert Palmer, for the respondent.
   Patterson, J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff in a transaction had between him and the defendants’ testator, John W. Doane. The appeal is from an interlocutory judgment sustaining a demurrer to certain matter set up in the amended answer of the defendants, which is stated to be a partial defense to the cause of action set forth in the complaint, and which is substantially a recital of facts tending to reduce the damages claimed by the plaintiff. It is stated in the complaint that in March, 1900, the plaintiff sold to John W. Doane real estate in the city of New York known as Nos. 143, 145 and 147 Franklin street, in the borough of Manhattan; that, as part of the consideration for the transfer; Doane indorsed and delivered to the plaintiff a certain promissory note for $75,000, with interest at five per cent, and which purported on its face to be made by John Bobinson and Edward F. Biley to the order of John W. Doane; that simultaneously with the delivery of the promissory note Doane also assigned to the plaintiff a mortgage which Doane represented to the plaintiff had been executed by Bobinson and Biley and to have been given by them to secure the payment of the note, and it is charged that John W. Doane represented to the plaintiff that the mortgage was a first lien on real estate in the city of Chicago, in the State of Illinois, the mortgage also purporting on its face to have been executed by Bobinson and Biley. It is further charged in the complaint that the defendants’ testator also represented that, at the time of the execution of the note and of the mortgage, Bobinson and Biley were the owners of the Chicago property, and that the note and mortgage accepted by the plaintiff in part payment for the transfer of the Franklin street property were spurious and void, and were never signed by Biley nor any one else having his authority; that at the time of the conveyance of the Franklin street property and the acceptance of the note and mortgage in part payment, the plaintiff had no knowledge that either the note or the mortgage was spurious, but that they were accepted in good faith, the plaintiff relying upon the assignment and indorsement and representations of the defendants’ testator as to the genuineness of the instruments, and that the plaintiff has never ratified or confirmed his acceptance of them. It is not alleged in the complaint that John W. Doane knew that the note and mortgage were not signed by Biley, or that he intended to deceive or defraud the plaintiff.

This complaint has been construed by this court (Gabay v. Doane, 66 App. Div. 511), and it was held that the cause of action is to recover for the breach of an express or implied warranty of the genuineness of the note and mortgage, and that there are no allegations in the complaint that would justify an action in tort or by which the plaintiff’s right to relief can depend upon false or fraudulent representations. To the complaint the defendants interposed an answer in which they set up certain occurrences that took place after the action was begun and which had the effect of validating the note and mortgage and making them enforcible securities. That matter was pleaded as an entire defense to the action. The plaintiff demurred to that defense, and it was held by this court (Gabay v. Doane, supra) that the matter so pleaded was unavailable as a complete defense; that the plaintiff was entitled to recover such damages as he had sustained at the commencement of the action; that the subsequent acts of the defendants or makers of the note or of the owner of the property covered by the mortgage which would tend to validate the note and mortgage after the commencement of the action “ could have no relation to the damages that the plaintiff had sustained when the action was commenced.”

This language must be understood as relating to the matter pleaded constituting a complete defense, and that is obvious from an expression contained in another part of the opinion of the court, namely, “ These allegations are made as a defense to the plaintiff’s cause of action, not in mitigation of damages, or for the purpose of reducing the plaintiff’s damage.” All that was decided by this court in sustaining the demurrer on the former appeal was that matter which arose subsequent to the commencement of the action did not, in the form in which it was pleaded, constitute a defense going to the whole right of the plaintiff to recover. In sustaining the demurrer to the matter pleaded as an entire defense, permission was given to the defendants to answer over, and, in availing themselves of that permission, they have in an amended answer set up precisely the same matter contained in the original answer, but now present it as a partial defense and in reduction of damages. A demurrer has again been interposed and sustained by the Special Term. The learned justice by whom the argument of the present demurrer was heard conceived that this court having declared that the matter demurred to had no relation to the damages that the plaintiff had sustained when the action was commenced,” such matter was not available in an answer for any purpose. The phrase quoted from the opinion of the court in a certain way may be misleading, but it was not intended to prejudge the question of that matter constituting a partial defense.

It was unnecessary to discuss or determine . upon the former appeal to what extent the same facts might have been pleaded in mitigation. If a plaintiff is entitled to recover not only the damages sustained by him to the time an action is commenced but also such additional damage as may have been caused by the acts complained of down to the date of trial, it is proper that a defendant be permitted to prove in mitigation facts arising after the commencement of the action.

What is now set up as a partial defense is pleaded in diminution of the amount which the plaintifE may recover and it is authorized by the provisions of the Code of Civil Procedure. Section 507 of that Code provides that a defendant may set forth in his answer as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Section 508 provides that a partial defense may be set forth as prescribed in the last section, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is whether it is sufficient for that purpose. In the same section (508) it is further provided that matter tending only to mitigate or reduce damages in an action to recover damages for the breach of a promise to marry or for a personal injury or an injury to property, is a partial defense within the meaning of this section.

The argument of the respondent seems to be that the provision last quoted of section 508 makes an exclusive classification of partial defenses, and therefrom is drawn the inference that there can only be a partial defense to an action to recover damages for a breach of a promise to marry or for a personal injury or an injury to property; but that is clearly an erroneous inference. In McKyring v. Bull (16 N. Y. 303), in giving construction to section 149 of the Code of Procedure, which is identical with section 500 of the Code of Civil Procedure, the Court of Appeals held that it should be so interpreted as to require defendants in all cases to plead any new matter constituting either an entire or partial defense and to prohibit them from giving such matter in evidence upon the assessment of damages when not set up in the answer, and Seldex, J., said: “¡Not only payment, therefore, in whole or in part, but release, accord and satisfaction, arbitrament, &c., which may still, for aught I see, be made available in England in mitigation of damages without plea, must here bepleaded.” That case is still authority.

It is argued that the matter constituting the partial defense arose subsequent to the commencement of the action and that, in legal actions, differing in that respect from suits in equity, the rights of the parties must be determined as of the time of the commencement of the action. As was remarked by Pryor, J., in Ferris v. Tannebaum (39 N. Y. St. Repr. 72) : “But, in an action of a legal nature, the right of the parties must be determined as they existed at the commencement of the action, except so far as the situation has been since changed unfavorably to the plaintiff’s claim, either by his own act or by operation of the law, the reason being that in a legal action the statute gives costs, and as they ought not to be charged on a plaintiff who had good ground to sue, the defendant ■should get lea/oe to plead, so that the court may impose terms. (26 Abb. N. C. 22, 24; Wisner v. Ocumpaugh, 71 N. Y. 113; Styles v. Fuller, 101 id. 622.)”

In considering this demurrer, we can only pass upon the sufficiency of the matter pleaded as constituting a partial defense. We cannot assume that leave to plead was not given.

The interlocutory judgment sustaining the demurrer should be reversed, with costs, and the demurrer overruled, with costs, with leave to withdraw demurrer on payment of costs in this court and in the court below.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to withdraw demurrer on payment of costs in this court and in the court below.  