
    SCHAUS against THE MANHATTAN GAS LIGHT COMPANY.
    
      New York Superior Court;
    
    
      General Term, June, 18
    Pleading. —Evidence.—General Issue.
    Under the general issue, in an action to recover damages for negligence in opening a ditch for laying gas mains, whereby, as it is alleged, water was let into plaintiff’s premises, evidence that the water came, not from the ditch,- but from the. sewer, defects in which were the real cause of the injury, is admissible.
    
    
      This action was brought by Wm. Schaus to recover damages alleged to- have been sustained by him from water which entered his cellar, as he alleged, through the negligence of the defendants in opening a ditch in front of plaintiff’s premises for laying gas mains in the street.
    The answer was a general denial.
    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.
    Judgment having been entered against plaintiff, on a verdict in favor of the defendant, had at the trial, and his motion for a new trial, made on the judge’s minutes, having been denied, he appealed to the general term.
    
      F. R. Sherman and A. R. Rodgers, for the plaintiff, appellant.
    
      Henry H. Anderson, for the defendants, respondents.
    
      
       In actions for negligence, contributory negligence of the plaintiff is available under the general issue. But it is held that proof of the intervention of vis major,—the act of God, is not admissible, unless specially pleaded (New Haven, &c. Co. v. Quintard, 6 Abb. Pr. N. S., 128).
      In an action upon contract the defense that the contract was void because made by an unlicensed person in a business for which the law requires a license, cannot be. proved under a general denial (Gilbert v. Sage, 5 Lans., 287).
      In an action on a fraudulent warranty of the soundness of a chattel sold, evidence that the seller communicated the defect is admissible under a general denial (Howell v. Biddlecom, 62 Barb., 131).
      In St. John v. Skinner (in the New York superior court), the plaintiff sued to recover money lent, and the answer was a general denial. It appeared on the trial that the defendant transferred property to the plaintiff, who, thereupon, by giving a mortgage on the property, with his own bond as personal security, raised the money in question for the defendant. Held, that the. answer being merely a general denial, defendant could not be allowed to prove that the transfer was on an agreement that if the property, on a sale, brought more than a sum specified, the surplus should be divided, and that this was the consideration for plaintiff’s assuming the responsibility. The defense that defendant’s property had been transferred to plaintiff to enable him to raise the money, if it be a defense, must be specially pleaded.
    
   By the Court.—Freedman, J.

[After stating above facts.]—We think the evidence was properly received. Although, under the requirements of section 149 of the Code, new matter must be pleaded, and consequently the defenses of payment, release, accord and satisfaction, of arbitrament, and many other entire and partial defenses, 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 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. Pr. N. S., 389).

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

Judgment accordingly.  