
    James Drake v. James M. Cockroft.
    An answer which merely alleges, without denying any fact stated in the complaint, that the defendant denies that the plaintiff is entitled to the money demanded, will he stricken out on motion.
    In an action by a landlord to recover rent, the tenant cannot set up, as a counter claim, a mere trespass by the landlord and destruction of personal property upon the demised premises.
    Such a trespass is not a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor connected with the subject of the action.
    Whether, in actions at law, the Code of Procedure has extended the doctrine of recoupment to any cases to which it did not apply before the Code ? Quere.
    
    Distinction, in pleading, between a fact and a truth.
    This was an appeal by the defendant from an order entered at special term, striking ont what were designated in the answer as a first and a second defence to an action for rent. The motion made by the plaintiff was, that those defences be stricken out, the first as irrelevant, and the second as redundant and irrelevant. The allegations of the respective pleadings, material to the questions discussed on the appeal, are stated in the opinion of the court, by Woodruff, J., at general term.
    The motion was heard and decided, in the first instance, by Lsghraham, First J. The following is his opinion, delivered at special term:
    Ingraham, First J. We have repeatedly held, that a mere denial that the plaintiff is entitled to the money demanded in the complaint, is bad. Such a denial does not take issue upon any fact alleged by the plaintiff, but upon the conclusion to be drawn from those facts. Instead of denying the allegations of renting, of the rent being due, &c., the answer, by its silence, admits them, and the admission establishes the defendant’s liability. His denial of the mere conclusion of law upon the facts is not good in an answer.
    
      2. The second defence in the answer is, that the plaintiff had, at the same time of the letting in the complaint mentioned, rented to the defendant another building adjoining the one for which the rent was claimed, and had entered upon such adjoining building and committed a trespass on personal property of the defendant, for which he asks damages by way of counter claim.
    There is no provision in the Code which admits of such a defence. The matter set up by the defendant did not arise out of the contract under which the plaintiff complains; nor is it a matter arising at all on contract. These are the only defences that can be made by way of counter claim, viz.:
    1. Where the cause of action arises out of the contract set forth by the plaintiff.
    2. Where it arises in contract.
    The matter set up by the defendant is a pure trespass upon the defendant’s personal property, without any connection with a contract of any kind. * * * * *
    The motion to strike out the first and second defences is granted; as to the residue it is denied. Costs to abide event.
    
      Harris Scovell, for the defendant.
    
      William Lowerre, for the plaintiff.
   By the Court.

Woodruff, J.

The complaint herein avers that tiie plaintiff on, &c., let to the defendant, and the defendant hired and took from the plaintiff certain premises, for the term of one year from the first of May then next, at the yearly rent of $925, payable as follows: $308 33 on the first-day of August, 1853 ; $308 33 on the first day of November, 1853; and the balance, $308 34, on the first day of February, 1854.

After setting forth other provisions of the case, not material to this appeal, the complaint further avers that the defendant promised to make punctual payment of the said rent in the manner above mentioned, and that the defendant entered into possession of the demised premises under and by virtue of the said hiring, and continued in the possession, &c., until after the first day of February, 1854. That on the first day of August, 1853, the said sum of $308 ,33 became due and payable, according to the tenor of the said letting and hiring ■ and that the sum of $8 33 thereof is now due and owing. That on the first day of November, 1853, the other sum of $308 33 became due and payable, according to the tenor, &c.; and that the sum of $8 33 is now due and owing; and the said balance of $308 34 became due and payable on the first day of February, 1854, and the whole thereof is now due and payable, whereupon the plaintiff demands judgment for $325, and interest and costs.

To which complaint the defendant, by answer, sets up, or attempts to set up, three distinct defences. For a first and distinct defence the defendant answers, that he “ denies that the said plaintiff is entitled to the sum of money demanded in this action, or any part thereof.”

Reading this supposed “ defence” in connection with the legal principle, that “ every practical allegation in the complaint which is not controverted by the answer, shall be taken as true for the purposes of the action,” this so called defence amounts to this: Although I hired the plaintiff’s premises for the period stated, and agreed to pay the rent specified, and occupied the premises during the term, and the rent became due and payable according to the tenor of the hiring, and is now due and owing, still the plaintiff is not entitled to such rent.” Or, in another form, “ although all the facts alleged by the plaintiff are true, still he is not entitled to recover.”

I fully concur in the opinion of the first judge at special term, that this is no defence at all. If the facts stated by the plaintiff are true, the plaintiff is entitled to the sum of money demanded; and this so called first defence is a mere legal falsehood, unless other facts exist which are not stated.

I need not state the elementary rule of pleading, that a a plea or answer which does not deny the facts alleged by the plaintiff, must state facts, which, if proved, would destroy the legal inference that the plaintiff is entitled to recover. If the allegations of the plaintiff are sufficient in law to entitle him to recover, the defendant cannot dispute the right of recovery, while he admits the facts stated, unless he avers new facts which defeat their otherwise legal operation.

The defendant’s counsel, on the argument of the appear, insists, that a denial of the plaintiff’s right to recover, or statement that the plaintiff is not entitled to the money, is a statement of a fact. In this, I apprehend, he overlooks the distinction which often exists between the statement of a truth and an allegation of a fact. Indeed, the terms fact and truth are often used in common parlance as synonymous, but as employed in reference to pleading, they are widely different. A fact in pleading is a circumstance, act, event or incident; a truth is the legal principle which declares or governs the facts and their operative effect. Admitting the facts stated in a complaint, the truth may be that the plaintiff is not entitled, upon the face of his complaint, to what he claims. The mode in which a defendant sets up that truth for his protection is a demurrer.

So, also, admitting the facts stated in a complaint, the truth * may still be, that by reason of the existence of facts, which are not disclosed by the complaint, the plaintiff is not entitled to what he claims. If a defendant wishes to urge this condition of things, he must do it by avowing the existence of those facts.

It seemed to me so obvious that this denial of the plaintiff’s title to recover contains nothing which can be called a statement of a fact, that no language could make it more plain; but counsel for the appellant have deemed it doubtful, and pressed it upon our further consideration.

The case cited by him (Allen v. Patterson, 3 Selden, 476) does not even tend to sustain such an answer. An averment in a complaint, that the defendant was indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant, at his request, on a day named, and at a place stated, and that a sum named is due to the plaintiff from the defendant, was held to import, and, therefore, in substance to be, an averment, that at the time and place stated, the plaintiff sold and delivered to the defendant the goods referred to ; and the court, in that case, distinctly recognize the duty of a pleader distinctly to aver or state every fact on which he relies to support the legal proposition upon which his right to maintain or defend the suit is dependent.

II. For a second and distinct defence the defendant sets up what the pleader (as if himself in some doubt by what name it can properly be called) terms a claim to an allowance of the “ amount or value” of certain personal property, “ by way of counter claim, recoupment or set off.”

And this claim is founded upon allegations that the defendant, simultaneously with and as a part and parcel of the same hiring mentioned in the complaint, hired from the plaintiff, and held, used and occupied a certain stable and lot of ground adjoining the premises described therein, and that the plaintiff, during the defendant’s temporary absence, broke open the stable and willfully took and removed the personal property of the defendant therefrom, and the same has been injured, destroyed and lost to the defendant. What the property consists of, or how much is its value, is not stated.

If I thought it doubtful whether the matter thus pleaded, as a second defence, did or did not constitute a valid counter claim in this action, I should not hesitate to say, that it ought not to have been struck out on motion, and that the plaintiff should have been left to his demurrer: Li this respect I assent to the argument urged by the counsel for the appellant, and to the authorities cited by him, that questions of doubt ought not to be disposed of in this summary manner, when a demurrer is an appropriate mode of trying them. But I can find no room for any doubt upon the subject. The answer sets up a mere trespass by the landlord by taking, injuring and destroying certain personal property which was upon a portion of the demised premises.

It is not claimed, by the counsel for the appellant, that such a trespass could "be set up, "before the adoption of our Oode, as a defence to an action hy the landlord for the rent. But it is insisted that the counter claim authorized hy the Code includes the damages sustained "by the tenant from such a trespass.

The counter claims which the Code authorizes are defined,

1st. “ A cause of action arising out of the contract or transaction set forth in the plaintiff’s complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.

2d. “ In an action arising on contract, any other cause of action arising also on contract,” &c.

A trespass on real or personal property is not a cause of action arising on contract. The second clause, above cited, clearly does not authorize such a defence in an action upon contract, and the present is an action upon the contract of hiring.

Does the first definition or explanation of the term counter claim embrace the matter set up in this answer ?

Obviously it does not, unless the cause of action set up in the answer arises out of the contract set forth in the plaintiff’s complaint, or is connected with the subject of the plaintiff’s action.

The answer sets up a trespass by the landlord upon the demised premises, and the destruction of the defendant’s goods. It does not even claim damages for the entry or for any injury to the possession, but only for the personal property destroyed. Die contract set forth by the plaintiff is a letting and hiring, and agreement by the defendant to pay the rent. The trespass averred does not arise out of any contract. The liability of the plaintiff for the trespass does not result from that contract, nor is it affected by it. As a cause of action, it is wholly independent of that contract, and the liability, therefore, exists to the same extent, and is neither less nor greater than if the trespass had been committed upon any other premises in the occupation of the defendant. The landlord is no more liable for the trespass than for the like trespass committed elsewhere.

Nor is the trespass connected with the subject of the action. Here the subject of the action is rent, or money due upon the contract of hiring—the compensation for the use and occupation. The use and occupation have not been interfered with; they have continued without interruption. An interference with the possession, an eviction total or partial, an un-, lawful injury to the premises in violation of the agreement of letting, would have given the defendant a claim for damages, which, upon a liberal construction of the language of the Code, might have been connected with the subject of the action, so as to constitute a counter claim. But a mere trespass is, in my opinion, no more connected with the subject of an action brought for the rent, than an assault and battery of the tenant by the landlord would be.

I can find no more ground for saying that such a trespass can be set up as a defence to an action for rent now than before the-Code was enacted. The provisions of the Code above referred to were designed to affirm the right of a defendant to recoup his damages in those cases, in which a.recoupment was proper before the Code was enacted. (See Reab v. McAllister, 8 Wend. 109, and Batterman v. Pierce, 3 Hill, 191.) If the Code extends the right to any other cases not within the law of set off, which I doubt, they are not such as is exhibited by the answer now in question.

In my opinion, the order striking out what are termed in the answer the first and second defences, should be affirmed.

Order affirmed, with costs.  