
    Allen v. Haskins.
    An answer, containing a counter claim, is not demurrable, because it is not an answer to the whole of the plaintiff’s cause of action.
    The Code prescribes no rule, by which to determine the sufficiency of an answer containing a counter claim, except that it must state facts sufficient to constitute a good cause of action, in favor of the defendant and against the plaintiff, and that it be one of the several causes of action defined by § 160 of the Code.
    (Before Oaklet, Ch. J., Duek and Boswokth, J.J.)
    February, 1856.
    This action came before the court, on an appeal by the plaintiff, from an order overruling a demurrer, interposed by him, to the defendant’s answer. The issues of law, raised by the demurrer, were tried before Mr. Justice Hoffman, in December, 1855.
    The pleadings are as follows, viz.:—■
    ' The plaintiff complains against the defendant, and states, that the defendant, on or about the 31st day of January, 1855, at the city of Hew York, made this promissory note, bearing date the said 31st day of January, and thereby promised to pay, four months after the date thereof, to the order of himself, $120, for value received. And the said defendant endorsed the said note in blank, and duly delivered and put the same into circulation, and the said note was afterwards, and before it became due, duly transferred and delivered to the plaintiff, for value, and the plaintiff is now the legal owner and holder of the said note; that when the said note became due and payable, it was duly presented, by a notary public, for payment, but the defendant refused to pay the same. Wherefore, the plaintiff demands a judgment against the defendant for the said sum of $120, and interest thereon from the 2d day of June, 1855, besides notary’s charges and the costs of this action.
    The defendant, for amended answer to the complaint, upon information and belief, denies that the note, mentioned and referred to in said complaint, was, after it was made by him, and before it became due, duly transferred and delivered to the plaintiff for value. And he avers, that the said note was made and delivered by him to one Dillinger, who, this defendant is informed and believes, was, at that time, an agent or servant of the plaintiff, and acting as such, on behalf of the plaintiff, in that transaction, in exchange for a quantity of segars, which were sold, by sample, to the defendant, at that time, by said Dillinger, as such agent; that when said segars were delivered to this defendant, they did not correspond with the samples, and were not worth, in all, the sum of twenty dollars; that, as soon as the defendant learned the character of said segars, he offered, to said Dillinger, as such agent, to return them, which he is still ready and willing to do. Wherefore, the defendant says he has been damaged by the plaintiff, by the fraudulent sale aforesaid, in the sum of $100, which he claims to recoup from the amount of the said note. And the defendant demands judgment against the plaintiff for the costs of this action.
    The plaintiff demurs to the defendant’s amended answer, in this cause, for insufficiency, and states the following grounds of demurrer:
    1st. That the said answer is pleaded in bar of the whole of the plaintiff’s complaint, but alleges facts in bar of only part of the cause of action set forth in that complaint.
    2d. That the said answer does not deny any material allegation of the complaint, nor does it set up new matter in bar thereof.
    3d. That the said answer does not state facts sufficient to constitute a defence, or deny the plaintiff’s cause of action.
    
      J. H. Harte, made and argued the following points, in behalf of the appellant.
    1st. The answer professes to be an “ answer to the complaint,” and “ demands judgment against the plaintiff.” It claims to answer the whole complaint, and demands judgment for the whole of the defendant’s costs, without any deduction. It does not, in terms, admit any sum to be due the plaintiff. It is pleaded, in bar of the whole demand, but alleges facts in bar of a part only of that demand, and is, therefore, demurrable for insufficiency. (10 How. Pr. R. 67, 73; 6 id. 436; Chitty on Pl. 454; 18 J. R. 28.)
    2d. The denial, in the beginning of the answer, is not intended as a defence of itself, but only to lay a foundation for the new matter. It is not a general denial, and does not take the place of the old general issue, so as to allow recoupment to be given in evidence under it. It is, moreover, a denial of immaterial allegations, (9 How. 215, 216, 217,) and it is not in the form required by the Code; being “ on information and belief,” which the Code does not allow, and is, therefore, a mere nullity. (10 How. Pr. R. 22; Code, § 149.)
    3d. The facts alleged in the answer do not constitute a “defence,” nor do they amount to a “counter claim,” and are, therefore, insufficient. (10 How. Pr. R. 72, 73 ; Code, § 149.)
    4th. The Code does not authorize a partial defence, nor did the “ former practice” allow a partial defence, and that practice is continued by the Code. (Code, § 468, 469; 10 How. 67, 73.)
    5th. The facts alleged in the answer, not being well pleaded, are not admitted by the demurrer, (10 How. Pr. R. 10,) and they have been sworn by the plaintiff to be wholly false, as to his being in any way connected with the sale of the segars, or the origin of the note.
    6th. Even if the order should be affirmed, as the point has not been settled under the Code, it should be without costs. (8 How. Pr. R. 441, 448.)
    
      W. H. Disbroio, for respondent,
   By the Court. Bosworth, J.

This case was submitted on written points.

Ko point is made upon the papers submitted, that the averment that the segars “ were sold by sample” was not a sufficient allegar gation that they were sold upon an agreement or warranty, that the bulk of the articles should correspond in quality, with the sample, with reference to which the contract was made. (Bierne v. Dord, 1 Seld. 95.) On the contrary, the appellant’s points state that “this appeal is brought for the purpose of settling the question, whether a partial defence can be pleaded in bar.” This assumes, that the facts stated in the answer constitute a partial defence, and the appellant contends that a partial defence cannot be pleaded; that to constitute a good answer, the defence it presents must be total, and that the answer in question does not contain a counter claim, because, as is insisted, the facts stated show a partial failure of consideration, and do not give a right of action.

If the sale was, what is technically termed, a sale by sample, the defendant, if the segars delivered did not correspond with the sample, would have a right of action, to recover the difference between the value of such goods in the condition they were at the time they were delivered, and of the same goods in quality like the sample. (Bierne v. Dord, supra; Hargous v. Stone, 1 Seld. 72.)

The Code declares that the sufficiency of pleadings is not to be determined by pre-existing rules, but by those prescribed by the Code itself, (§ 140.) That an answer may contain new matter, constituting a counter claim, (id. 149.) A cause of action, arising out of the contract or transaction set forth in the complaint, is a counter claim, (id. 150, sub. 1.) The Code has no such qualification as that the counter claim, to be pleadable, must entitle the defendant to an amount of damages equal to the amount of the plaintiff’s claim. It is enough, so far as the essentials of a sufficient answer are prescribed by the Code itself, that it states facts constituting a cause of action against the plaintiff, arising out of the contract or transaction set forth in the complaint, as the foundation of-the plaintiff’s claim-, or connected with the subject of the action.

If the defendant had paid cash on the delivery of the segars, it will not be pretended, if the sale was by sample, and the goods delivered did not correspond with the sample, that the defendant was remediless. If he offered to return the goods, on discovering the defects, he could maintain an action to recover his damages.

Assuming the allegations of the answer to be sufficient as a pleading, to raise the issue, whether the sale was one by sample, then it is quite clear that it sets up a counter claim, as that word is defined by the Code. The Code does not discriminate between the counter claims, which it defines, and allow those to be set up which give a right to damages equal to the amount of the plaintiff's demand, and prohibit setting up those on which the damages claimed do not equal it.

The Code prescribes no rule by which to determine the sufficiency of an answer containing a counter claim, except that it must state facts enough to constitute a good cause of action in favor of the defendant and against the plaintiff,- and that it be one of the several causes of action defined by § 150 of the Code.

This answer sets up such a counter claim. It follows that the demurrer was properly overruled, and that the order appealed from must be affirmed with costs. But the order of affirmance will allow the plaintiff to reply, on payment of costs of the de-  