
    Benjamin Altman and Michael Friedsam, Doing Business under the Firm Name of B. Altman & Company, Appellants, v. Mrs. W. R. Cochrane, Respondent.
    Second Department,
    March 19, 1909.
    Justice’s Court —judgment on verified complaint for failure to answer — Code of Civil Procedure, section 2891, construed — pleading — answer ■— allegations inconsistent with but not traversing complaint.
    Where a defendant sued in a Justice’s Court for the value of wearing apparel sold and delivered, files a verified answer to the verified complaint without denying the allegations thereof, but merely alleges that the plaintiff had failed to fulfill his agreement to alter some of the clothes so as to fit the plaintiff, where-for she refused to accept them, it is error to dismiss the complaint because of the plaintiff’s failure to make proof.
    The material allegations of a complaint are not controverted or put in issue by allegations.inconsistent therewith, from which a general denial maybe implied or inferred.
    Since the amendment to section 2891 of the Code of Civil Procedure, made by chapter 291 of the Laws of 1906, a plaintiff in a Justice’s Court who has filed a verified complaint is entitled to judgment without further proof if the defendant fails to answer or admits the allegations of the complaint. Said section should not be construed to mean that where the defendant admits the allegations and pleads an affirmative defense, the plaintiff is put to formal proof.
    Appeal by the plaintiffs, Benjamin Altman and another, doing business under the firm name of B. Altman & Company, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 1st day of July, 1908, upon an order of said County Court entered in said clerk’s office on the same day, affirming a judgment in favor of the plaintiffs rendered by a justice of the peace of the town of Hempstead, and also from the said order of affirmance.
    
      Lincoln B. Haskin, for the appellants.
    
      John Lyon, for the respondent.
   Hirschberg, P. J.:

This action was commenced in Justice’s Court by the service of a summons with a verified complaint. . The complaint alleged that the plaintiffs sold and delivered to the defendant, between April 1 and. .Hay 8, 1907, certain goods, itemized, of the value of ninety-nine dollars and ninety-eight cents. On the return day the defendant filed a written offer to allow judgment to be taken against her by the plaintiffs for the sum of forty-eight dollars and ninety-eight cents, with interest and costs. The amount so offered was the amount sued for less fifty-one dollars, but the offer was not accepted by the plaintiffs. The defendant thereupon filed a verified answer, alleging in substance that fifty-one dollars of the amount of the plaintiffs* claim, made up of two items, namely, forty-five dollars for a suit and six dollars for an alteration and material, should not be allowed. The defendant alleged that the suit was purchased by her from the plaintiffs upon their promise and agreement that it should be altered and made to fit her ; that it was delivered to her without alteration and not made to fit; that she accordingly refused to accept it and that she subsequently returned it to the plaintiffs, by whom it was accepted and received. . On this state of the pleadings the justice of the peace held that the burden of proof was on the plaintiffs, except as to the amount as to which the offer of judgment had been made. The plaintiffs excepted to this ruling, whereupon on motion of the defendant the complaint was dismissed, with costs, and the judgment which was entered has been affirmed in the County Court on the ground that by the terms of section 2891 of the Code of Civil Procedure a judgment cannot be. entered in favor of the plaintiff on a verified complaint without proof, where the defendant files an answer.

I think the decision is erroneous. No allegation óf the complaint has been denied. As to the suit and material in question, the defendant expressly admits the purchase, but seeks to avoid liability because, of the failure of the plaintiffs to perform an executory agreement in connection with the sale. There was nothing for the jfiaintiffs to prove, the amount of the bill m i‘oto being admitted by the failure of the defendant to deny. The question at issue turns upon the consideration to be placed upon the amendment to section 2891, effected by chapter 291 of the Laws of 1906.- Prior to the amendment, the section provided that if a defendant failed to appear and answer, the plaintiff could not recover without proving his case. The section as .amended is headed “ Plaintiff, to prove his case, except where a verified complaint is served.” The section, as amended, provides in substance that if a defendant fails to appear and answer, the plaintiff cannot recover without proving his case, except in an action which has been commenced by the service of a summons and verified, complaint. In such an action, in case the defendant fails to answer, he shall be deemed to have admitted the allegations of the complaint and the court shall enter judgment without further proof. I do not think this is to be construed as meaning that, in case the defendant does answer by admitting the allegations of the complaint and pleading an affirmative defense, the plaintiff .shall still be put to his formal proof. The obvious purpose of the amendment was to dispense with additional proof, where the complaint was verified and its allegations uncontroverted.

In Harley v. Fitzgerald (84 Hun, 305) it was held that in Jusr tice’s Court the right of a plaintiff to.-open and close the casé is a substantial right, and a failure to grfent it a fatal error. That case arose before the amendment, it is true, but it -was held that the provision requiring the plaintiff to prove his case did not apply where the defendant appeared and answered. The learned counsel for the respondent attempts to distinguish it from the case at bar on the ground that there the complaint was not Verified, but it cannot be that the Legislature intended by the amendment to give to an unverified complaint greater force than to a verified one, so that in the former case proof need not be made, while it would be exacted where the complaint was sworn to.

Even as to the suit and material for alteration, there was no issue raised by the answer in the form of a denial. The defendant admits the purchase but'denies liability because of the failure to make the suit fit. It is in the nature of confession and avoidance, but, as was said in Smith v. Coe (170 N. Y. 162, 167), “there was no denial, general or specific, of- the allegations of the complaint referred to, éxcept so far as such denial could be spelled out or inferred from an inconsistent version of the transaction given by the pleader iri the answer. The allegations of a complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts alleged, or from which a general denial may be implied or inferred. (Rodgers v. Clement, 162 N. Y. 422, 428; Fleischmann v. Stern, 90 N. Y. 110 ; Marston v. Swett, 66 N. Y. 210; Wood v. Whiting, 21 Barb. 190 ; West v. American Exchange Bank, 44 Barb. 175.)”

The judgment of the County Court and of the justice should be reversed, with costs.

Woodward, Jenks, Gaynor and Burr, JJ., concurred.

Judgment of the County Court of Nassau county and of the Justice’s Court reversed, with costs. 
      
      See Laws of 1880, chao. 178.— [Rep.
     