
    Ivy Courts Realty Company, Respondent, v. William L. Morton, Appellant.
    
      Pleading — matter pleaded as a complete defense, which constitutes only a partial defense, is uemurrable — when sufficient as a counterclaim — effect of an owner taking possession of the materials of a contractor and completing the work — tender of performance.
    
    The complaint in an action alleged that the Morningside Realty Company, of which corporation the plaintiff was the successor, entered into a contract with the defendant, by which the latter, in consideration of said company’s covenant to pay therefor the sum of §7,000, agreed to construct an apartment house on premises No. 343 West One Hundred and Seventh street, and that the damages sought to be recovered in the action were sustained by reason of the defendant’s failure to complete the contract. The answer, for a separate defense and counterclaim, alleged that the defendant entered into a contract with the Morningside Realty Company “ wherein and whereby among other provisions this defendant was to cut, furnish and put up certain stone for a certain building,” on premises known as No. 343 West One Hundred and Seventh street, for the agreed price of §7,000; that said company represented that it held the title to the premises, and that the defendant “ entered upon the performance of said contract, and continued in the performance thereof, as provided in said contract, up to about the first day of September, 1901, at or about which time this defendant discovered that the said Morningside Realty Company had no title to said property, and that the title to the same was in one Mamie Kilpatrick, the wife of Frank J. Kilpatrick, and at or about which time the said Morningside Realty Company, of which the plaintiff claims to be successor, in violation of the conditions of the aforesaid contract, and not complying with the same, and while this defendant’s stone was upon the property ready to put up, employed other persons to set this defendant’s stone and to finish this defendant’s contract, and took the work entirely out of this defendant’s hands and proceeded to finish the same, and that there is unpaid on said contract, and was unpaid at the time of the commencement of this action, the sum of two thousand dollars, and that the profits on the balance of said contract left unpaid that would have accrued to this defendant was the sum of seven hundred and fifty dollars, which this defendant counterclaims against the plaintiff.”
    
      Held, that the matter set forth in the answer constituted, at most, only a partial defense, and that, as it was pleaded as a complete defense, it was demurrable; That it did not appear from the record that the contract set forth in the answer was the same contract which was set forth in the complaint; that the answer, while insufficient as a defense, was sufficient as a counterclaim;
    That the allegations of the answer were sufficient to entitle the defendant to prove the facts constituting performance on his part, and also to entitle the defendant to prove that the Morningside Realty Company took possession of the work and finished the contract, and thereby prevented the defendant from so doing;
    That, as the Morningside Realty Company had taken possession of the work, a cause of action at once accrued to the defendant, and that it was not necessary for him to allege an offer to perform or a tender of performance.
    Appeal by the defendant, William L. Morton, 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 27th day of February, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to matters set forth as a separate defense and counterclaim in the answer.
    
      Charles 8. Bloomfield, for the appellant.
    
      Charles P. Powlcmd, for the respondent.
   Laughlin, J.:

The demurrer is upon the ground that as a separate and distinct defense the part of the answer to which it relates is insufficient in law, and that as a counterclaim it does not state facts sufficient to constitute a cause of action. The action is brought to recover $5,000 damages for a breach of contract. It is alleged in the complaint that the plaintiff is the successor to the Morningside Realty-Company, a New Jersey corporation, the corporate name having been duly changed on the 1st day of October, 1901; that on the 15th day of April, 1901, the Morningside Realty Company and the defendant entered into a contract by which the defendant, in consideration of said company’s covenant to pay therefor the sum of $7,000, agreed to construct an apartment house on premises No. 242 West One Hundred and Seventh street, and that the damages sought to be recovered were sustained by reason of defendant’s failure to complete the contract. That part of the answer to which the demurrer relates contains no denial of any of the allegations of the complaint, hut it is therein alleged that on the 13th of April, 1901, the defendant entered into a contract with the Morningside Realty Company wherein and whereby among other provisions this defendant was to cut, furnish and put up certain stone for a certain building” on premises known as No. 242 West One Hundred and Seventh street for the agreed price of $7,000; that said company represented that it held the title to said premises; that the defendant “ entered upon the performance of said contract, and continued in the performance thereof, as provided in said contract, up to about the first day of September, 1901, at or about which time this defendant discovered that the said Morningside Realty Company had no title to said property, and that the title to the same was in one Mamie Kilpatrick, the wife of Frank J. Kilpatrick, and at or about which time the said Morningside Realty Company, of which the plaintiff claims to be successor, in violation of' the conditions of the aforesaid contract, and not complying with the same, and while this defendant’s stone was upon the property ready to put up, employed other persons to set this defendant’s stone and to finish this defendant’s contract, and took the work entirely out of this defendant’s hands and proceeded to finish the same, and that there is unpaid on said contract, and was unpaid at the time of the commencement of this action, the sum of two thousand dollars, and that the profits on the balance of said contract left unpaid that would have accrued to this defendant was the sum of seven hundred and fifty dollars, which this defendant counterclaims against the plaintiff.” So far as this part of the answer pleads a defense, the matter is pleaded as a complete and not 'a partial defense, and it is, therefore, demurrable if it only constitutes a defense in part. (Thompson v. Halbert, 109 N. Y. 329.) It certainly cannot constitute a complete defense, and, in the form in which it is pleaded, it is difficult to see how it constitutes any defense. It is, doubtless, the fact, and seems to be assumed by counsel, that the contract therein referred to is the same contract that is set forth in the complaint, but we must decide the question upon the record as it is presented. According to the record the dates of the contracts are not the same, the premises are not the same and, while the consideration appears to be the same, it does not appear that the work is the same, and there is no reference in this part of the answer to the contract upon which the action is founded. This disposes of another objection which would be fatal to the appellant if it appeared that the answer referred to the contract sued upon. The complaint alleges a breach of that contract on the part of the defendant, and, inasmuch as that allegation is not denied in that part of the answer, for the purpose of the demurrer it would be taken as true and denials in other parts of the answer could not be considered. (Douglas v. Coonley, 156 N. Y. 521; Douglass v. Phenix Ins. Co., 138 id. 209; Brookline National Bank v. Moers, 19 App. Div. 155.)

The allegation that the defendant performed the contract and that- the plaintiff was guilty of a breach of the contract, if they relate to the contract on which the action is based, are inconsistent with the allegations of the complaint, but do not constitute denials. (Place v. Bleyl, 45 App. Div. 17; Fleischmann v. Stern, 90 N. Y. 110.) But, as has been said, there is nothing to show that the complaint and answer relate to the same contract. The answer is, we think, sufficient as a counterclaim. Demurrer lies only when the facts alleged or that can by reasonable and fair intendment be implied from them” do not constitute a cause of action. (Coats-worth v. Lehigh Valley R. Co., 156 N. Y. 451; Booz v. Cleveland School Furniture Co., 45 App. Div. 593.) In the Coats-worth Case (supra) the court say: “ Pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature of the pleader’s claims are sufficient if under them he would be entitled to give the necessary evidence to establish his cause of action.” The answer sufficiently alleges performance of the contract by the defendant down to the 1st day of September, 1901, when it is alleged in substance that the plaintiff’s predecessor took the performance of the work out of his hands. (Code Civ. Proe. § 533.) The defendant, under these allegations, would be entitled to show the facts constituting performance on his part. The allegations are also sufficient to admit proof that the Morningside Realty Company took possession of the work and finished the contract, and thereby excluded the defendant from so doing. In these circumstances a cause of action at once accrued to the defendant, and it was not necessary for him to allege an offer to perform or a tender of performance after the owner had taken possession of the work. (Smith v. Wetmore, 167 N. Y. 234.)

It follows that the interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs.

Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs.  