
    Philipp von Hagen, Plaintiff, v. The Waterbury Manufacturing Co., Defendant.
    (Supreme Court, Kings Special Term,
    February, 1898.)
    Breach of contract for a sale of goods — General denial' — Insufficient “ defence,” stating no new matter. ..
    A general denial, interposed to a complaint for -a breach of a contract to sell and. deliver goods, puts the plaintiff to proof of the entire contract, and enables the defendant to prove any facts which go to show that it was not made; and hence a “ defence,” subsequent to- the general denial, which alleges that a person -with the same surname as, but a different Christian name from,- that of |the plaintiff asked "the defendant to manufacture for him the same goods, and that it refused to do so because a required deposit was not given, must be stricken out, as it states no new matter and is not a defence, within the Code of Civil Procedure, § 500, subd. 2.
    Motion to strike out allegations pleaded as a defence. The complaint alleges the breach of a contract by the defendant to sell and deliver to the plaintiff certain specified merchandise, and prays for damages. The answer contains in substance a general denial, and then pleads as a “ defence ” that one Jacob von Hagen asked the defendant to manufacture and deliver to him the said merchandise; that the defendant informed him that it would not make the contract without a deposit of $300 being made; that such deposit was not made by the said Jacob von Hagen, and the defendant did not manufacture and deliver the goods.
    Emley & Eubino, for motion.
    Byran L. Winters, opposed.
   Gaynor J.:

This is one of those answers which so often bother trial judges. The so-called “ defence ” is no defence. - A defence can only consist of new matter, viz., "fact's outside of the issue raised by a general or special denial (Code Civ. Pro. sec. 500). First come denials in an answer, and then defences if there be any. The distinction between them is shown in the rule that while a defence ” may be stricken out as sham, a denial may not be (Wayland v. Tysen, 45 N. Y. 281). Mothing may be pleaded as a defence which may be proved under a denial (Flack v. O’Brien, 19 Misc. Rep. 399; McManus v. Ins. Co., 22 Misc. Rep. 269; Green v. Brown, 22 Misc. Rep. 279). The burden of proof is on the defendant upon an issue made by a defence, and facts should not be pleaded as a defence if the. burden of proving the issue to which they belong is not on the defendant. This is the test to go by. The general denial in this answer raises the whole issue. It puts the plaintiff to the proof of the alleged contract, and enables the defendant to prove any fact which disproves the making of it. If, therefore, Jacob von Hagen, named in the alleged defence, were to be considered as Philipp von Hagen, the plaintiff, the facts stated are not a defence, but are embraced within the general issue.

Motion granted.  