
    The Alexander Lumber Co., Appellant, v. Levi Abrahams, Respondent.
    (City Court of New York,
    General Term,
    February, 1897.)
    Evidence — Burden of proof where new matter constituting a defense or counterclaim is alleged without a denial.
    Where \ an answer contains neither a general nor specific denial, but sets up new matter alleged to constitute a defense or counterclaim, the plaintiff's cause of action stands admitted, and the defendant has the burden of proving his defense or counterclaim.
    Appeal from a judgment entered on the dismissal of the complaint upon the trial of this action before the court and a jury.
    
      Austen Gr. Fox, for appellant.,
    Abram Kling, for respondent.
   O’Dwyer, J.

The action was brought to recover the value of certain merchandise sold and delivered by the plaintiff to the defendant, and the complaint contains two causes of action separately stated and numbered.'

■ The answer contains neither a general nor specific denial of any of the allegations of the complaint.

It contains certain alleged defenses' and counterclaims, but as these counterclaims were withdrawn on the trial we are not called upon to determine whether the allegations therein contained stated' facts sufficient to constitute a cause or causes of action.

The Code (§ 500) provides that an answer must contain as follows:

“A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

“A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language without repetition.”

Section 501 provides:-

' “ Each defense or counterclaim must be separately stated, and numbered.” . ■'

Section 964 provides:

“An issue of fact arises in either1 of the following cases:

. “First. Upon a denial contained in the answer of a material allegation of the plaintiff’s complaint.”

. In view of the above sections the answer must be divided into three parts, as follows: .

First. A denial.

Second. A defense..

TMrd. A counterclaim.

Section 522 provides:

“ Each material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be deemed admitted, and taken as true.”

The allegations contained in the second paragraph or subdivision of the answer are affirmative statements of new matter, and under the Code, if sufficient, they.constitute a defense, which the defendant must prove. ,

• It is claimed that these affirmative statements amount to a denial, but upon examination we find that they are specifically addressed to the second paragraph or subdivision of the first cause of action set forth in the complaint, and on examining the second paragraph of the complaint it will be found to contain none of ■ the allegations which are attempted to be denied.

The allegations contained in the fourth paragraph of the answer in regard to the delivery of the merchandise mentioned in the second cause of action, do not deny the allegations contained in the eighth paragraph of the complaint either specifically or generally. • 1

It is a well-settled rule of pleading that no proof can be admitted in support of new matter contained in the answer which is inconsistent with an allegation in the complaint which is not denied. Beard v. Tilghman, 66 Hun, 12; Fleischmann v. Stern, 90 N. Y. 110.

The answer containing neither a general nor a specific denial of any of the allegations of the complaint, the plaintiff’s causes of action stood admitted without proof and. it was error for the . court to dismiss the complaint, as it did, upon the ground that the plaintiff had failed to establish the causes of action set forth in the complaint.

If the new matter alleged as constituting, a defense and counterclaim was sufficient in law, then the defendant under the pleadings had the affirmative and was bound to prove those defenses and counterclaims.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Wyck, Oh. J., and Scotchman, J., concur.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.  