
    MATTHEWS, Respondent, v. HILL, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    November 22, 1912.)
    Action by Albert Matthews against Fred Hill.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on the ground that the defendant had no right to set up an affirmative defense to the effect that the deed was procured from Mary McNeil by fraud and undue influence, for that was a defense not pleaded in the original answer in Justice’s Court. The allegations in the attempted new defense that the deed was a forgery were unnecessary, because, under the defendant’s denial, he could prove without plea that the deed was forged.

SMITH, P. J., and KELLOGG, J., dissent, upon the ground that no new defense is set up.  