
    The Manhattan Brick and Terra-Cotta Co., Respondent, v. Nathan E. Clark, Appellant.
    Appeal from a judgment entered on a verdict rendered by a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new; trial.
    Franklin Bien, for appellant.
    James E. Mack (John J. Quencer, of counsel), for respondent.
   Schuchman, J.

The action was brought to recover the balance due for goods sold and delivered by the plaintiff to the defendant. The answer admits that the plaintiff is a corporation, by not denying the allegation of the complaint in that regard. The answer then sets up a general denial of the two causes of action alleged in the complaint. The answer further sets up a separate and distinct defense, to-wit: “ That originally, between two certain dates, one Robert H. Matthews, who represented to the defendant that he was doing business under the name of the Manhattan Brick & Terra-Cotta Co., sold to the defendant herein certain terra-cotta at the agreed price of $1,976.30, and also furnished a team at the agreed price of $10.50; and that the defendant herein paid to the said Robert H. Matthews, relying upon the fact that he was doing business with him as aforesaid, the sum of $950 on account, and returned merchandise to the amount of $43.61, making a total credit of $993.61, and leaving a balance of $993.19, against which this defendant has a counterclaim or set-off, amounting to the sum of about $1,400, being a balance of moneys loaned and advanced by the defendant to the said Robert H. Matthews, during the time he was doing business with the said Robert S. Matthews as mentioned in the complaint herein, which was the same material and team furnished to the defendant by the said Robert H. Matthews under the agreement that the aforesaid balance mentioned in the complaint, to-wit, $993.19, was to be deducted from the balance due to the defendant for moneys loaned to the said Robert BE. Matthews.”

The trial judge held as follows: “ The issue in this action is whether these goods were sold and delivered by the plaintiff, the Manhattan Brick & Terra-Cotta Co., as a corporation, or by Mr. Matthews individually. As to the sale and delivery of the goods, they are admitted in the answer, and that the amount due is $993.19.” This we claim was error. The answer was a general denial and under that, the plaintiff was bound to prove his case, to-wit, a sale and delivery of the goods by the plaintiff to the defendant. The statement made in the separate and distinct defense, in the defendant’s answer, which the court construed as an admission, could not in law be construed as an admission of the sale and delivery. A defendant has a right to set up several inconsistent defenses, but every defense stands separate and independent. For that reason the trial judge could not take the admission made in the separate and distinct defense as a proof of the plaintiff’s cause of action against the defense of a general denial. The plaintiff was, therefore, bound to prove his case, to-wit, the sale and delivery of the goods by a preponderance of evidence, irrespective of certain statements and admissions made in the separate and distinct defense set up in the answer. This we claim he failed to do.

The judgment and order appealed from must, therefore, be reversed, and a new trial granted, with costs to the appellant to abide the event.

Delehanty, J., concurs.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  