
    ELLEN HENDERSON, Respondent, v. JAMES SCOTT, Appellant.
    Judgment— to operate as a bar, it must be pleaded as such.
    
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict rendered at the Oswego Circuit, and from an order denying a motion for a new trial on the minutes.
    The action was brought for mesne profits or rental value of real estate, after the recovery of a judgment in an action of ejectment. The complaint alleged that the plaintiff owned in fee and was entitled to the possession of one undivided seventh of certain lots in the city of Oswego described in the complaint; that the defendant without the consent of the plaintiff entered into the possession of the same in April, 1868, and has ever since occupied the same and received the rents and profits thereof, which were of the yearly value of $150 over and above taxes, and that in 1878 the plaintiff commenced an action in this court against the defendant to recover the possession of said premises, in which issue was joined and tried before a referee, and the plaintiff recovered a judgment decreeing that she was the owner and entitled to the possession of said premises, and that she is now in the possession of the same.
    The defendant by his answer denied the complaint and pleaded, first, that if the'plaintiff is the owner and entitled to the possession of said premises she is, and has been for twenty years, such owner as tenant in common with the defendant and those from whom he derives title, his share being six undivided sevenths of said lots; and secondly, in substance, that the defendant, and those under whom he claims, have made permanent improvements on said lots with the consent and acquiescence of the plaintiff, exceeding in value the amount of tbe plaintiffs claim, which they will set off against her claim. Some other defenses were set up which are not material to the questions involved in this appeal. The plaintiff replied denying the alleged counter-claim and pleading the former judgment, and also thp statute of limitations,-in bar tlier-eof.
    At the trial the plaintiff put in evidence the judgment-roll in the former action, which showed that such an action was commenced in January, 1878, and that the plaintiff in her complaint therein alleged, among other things, that the defendant wrongfully occupied the premises about fifteen years, and during that time, without the plaintiff’s consent, received the rents and profits thereof, which were of the yearly value of fifty dollars, and that in her complaint she demanded judgment for the possession of the premises and also for $500 damages for the withholding of the same as above stated. The defendant denied the withholding of the possession and that he had received the rents and profits. The record also showed that the referee found, among other things, that the defendant went into possession of the premises in March, 1868, and had remained in possession ever since, and that the rental value of the premises was $ 120 per year over and abqve taxes; and that the plaintiff was entitled to recover six cents damages for the withholding of the premises, and was not entitled to recover any portion of the value of the use and occupation of the premises because not claimed in the complaint. Judgment was entered accordingly.
    The court at General Term said: “ The defendant’s counsel contended at the trial, and now claims, that whether or not the referee erred in holding that the plaintiff was not entitled, under her complaint, to recover for the value of the use and occupation, the judgment is a bar to her claim to recover theiefor- in this action. That position cannot be taken by the defendant for the reason that he has not pleaded the judgment 'in bar. The defense- of a former recovery may have been admissible, in an action like the- present one, under the general issue prior to the Code. (Young v. Rummell, 2 Hill, 478; Beebe v. Elliott, 4 Barb., 457.) But since the Code it must be specially pleaded. (Old Code, § 149-; New Code, § 500; MeKyring v. Bull, 16 N. Y, 297, 307 ;■ Brazill v. Isham, 1 E. D. Smith’s R., 437; S. C. affirmed, 12 N. Y., 9;: Hendricks v. Decker, 35 Barb., 298.) In Brazill v. Isham the fact of the award of arbitrators, which was claimed by the defendant to be a bar to the action, was set np in tlie complaint, as is the former judgment here, but it not having been pleaded as a bar it was held that the defend-, ■ ant could not insist upon it as such.” * " * *
    
      B. B. Burt, for the appellant.
    
      J. A. Hathway, for the respondent.
   Opinion by

Smith, P. J.;

IIaedin and Baekeb, JJ., concurred.

Judgment and order affirmed.  