
    Morris Schwartz, Isaac Slutzky and Lazar Wallach, Appellants, v. Andrea Ribaudo, Respondent.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Landlord and tenant — Rent and advances—Actions:. Pleading — Answer — Sufficiency of denial; Evidence — Admissibility.
    Pleading: Answer or plea — Denials and traverses — Denial of knowledge or information — Of facts presumptively within defendant’s knowledge; Evidence admissible under the pleadings — In general.
    An answer in an action for rent, that defendant has no knowledge or information sufficient to form a belief as to an allegation of the complaint that, by a deed recorded the day of its date, the premises were conveyed to plaintiffs by a former owner, defendant’s lessor, and denies the same, raises no issue, as defendant cannot plead ignorance of a public record.
    Nor does a denial in such form properly meet the allegation of the complaint as to a demand for, and nonpayment of, the rent, such allegation importing personal knowledge thereof in the defendant.
    But, treating the answer as a good general denial and assuming that it puts in issue the allegation of nonpayment, it was error to allow, on cross-examination of plaintiffs’ witnesses,, a line of questions tending to' establish either an eviction or an accord and satisfaction, neither of which had been pleaded by defendant, as plaintiffs were not called upon to plead or prove either.
    
      Appeal by the plaintiffs from a judgment of the City Court of the city of ¡New York, entered upon the verdict of a jury in favor of the defendant by direction of the court.
    Morris Meyers, for appellants.
    A. J. Oishei (Nelson L. Keach, of counsel), for respondent
   Fitzgerald, J.

Plaintiffs, at the commencement of the action, were the owners of premises occupied by defendant under a lease from the former owner (Fannie Meyers) ; the execution of this lease is set forth in the first paragraph of the complaint and is not denied by the answer. The second paragraph of the complaint is as follows: “ That on or about the first day of December, 1905, the said Fannie Meyers by deed dated and recorded on said day conveyed the aforesaid premises to plaintiffs herein.” By the terms of the lease it appears that the yearly rent reserved was the sum of $3,600, payable in equal monthly installments of $300 per month in advance, same to be paid on the tenth day of each and every month during said term. The third paragraph of the complaint alleges a demand made on the 10th day of December, 1905, for the December rent, “ no part of which has been paid and that the sum of $300 with interest from that date is now due and owing.” These two paragraphs (2d and 3d) are denied by the answer as follows: “ Defendant has no knowledge or information sufficient to form a belief and denies the same.” This form of denial appears to be insufficient to raise an issue upon the pleadings. The averment of the record of the deed placed the defendant in a position to at once obtain knowledge and information and a party cannot plead ignorance of a public record to which he has access. . Ency. Pl. & Pr. 813; Ketcham v. Zerega, 1 E. D. Smith, 553; Zivi v. Einstein, 1 Misc. Rep. 212. ¡Neither are the averments of demand and nonpayment properly met by this form of denial, for the reason that the facts alleged import the personal knowledge thereof in the defendant (Singer v. Effler, 16 Misc. Rep. 334) ; but .treating the answer as a good general denial and assuming that it put in issue the allegation of nonpayment (Cochran v. Reich, 91 Hun, 440; Knapp v. Roche, 94 N. Y. 329), it was clearly error to have allowed, on cross-examination of plaintiffs’ witness, a line of questions tending to establish affirmative defenses not pleaded. It is well settled that new matter constituting either a complete or partial defense must be pleaded. McKyring v. Bull, 16 N. Y. 303; Gabay v. Doane, 77 App. Div. 413. It cannot well be claimed that plaintiffs were called upon to plead or prove as essential to their cause of action that there had neither been an eviction nor an accord and satisfaction; and evidence tending to support such defenses, therefore, was not admissible under a general denial. Cochran v. Reich, supra. It is claimed that other errors were committed by the learned trial court; but it is unnecessary to pass upon them, as, for the reasons given, a verdict for defendant rendered by direction cannot be permitted to stand.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

Gildebsleeve and Davis, JJ., concur.  