
    JOHN SCHREYER, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN and COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    I. Pleading,—Admission by,—Effect of.
    1. When the defendant’s pleading/orraa% and, explicitly admits that which establishes the plaintiff’s right, be will not be suffered to dewy its existence or to prove any state of facts inconsistent with that admission.
    
      a. Thus, when the complaint avers that the contract sued on was made by the defendant, and the answer expressly admits such averment, the defendant can not be permitted to prove,—
    1. Either that the contract was not his, and that consequently he was not liable thereon.
    2. Or (there being no affirmative defense to that effect) that the contract, being fair on its face, was illegal.
    
    3. Illegality of contbact,—Defense of must be pleaded, WHEN.
    1. When the complaint avers the making of a contract fair on its face, and the answer admits such merment, the illegality of the contract can not be insisted on to defeat a recovery, unless such illegality is set up in the answer as an affirmative defense.
    
    Before Freedman, Curtis and Speir, JJ.
    
      Decided February 1, 1875.
    
      This action is brought to recover the eighth and last instalment upon a contract entered into by the defendants through the school trustees of the Tenth-ward of the city of New York, with the consent of the Board of Public Instruction of said city, with Alonzo Dutch, for the erection of a school-house. By the terms of the contract, it was to inure to the benefit of the Mayor,. Aldermen and Commonalty of the city of New York. The contractor Dutch having failed, and having received the seventh instalment, leaving the eighth only unearned and unpaid, the plaintiff, with the consent of all parties, took an assignment of the contract from Dutch. This was recognized and assented to, and the-plaintiff went on, furnished the materials and did the work necessary to earn the eighth and last payment. Thereupon the trustees and the Board of Public Instruction made the necessary certificates and requisitions upon the comptroller of the city of New York to require the payment of said three thousand dollars to the plaintiff, and so as to vest the money in the plaintiff ;—in other words, the Board of Public Instruction and the school trustees of the Tenth-ward and the plaintiff had performed all the conditions precedent to entitle the plaintiff to receive his money and to require the defendant to pay the same ; and the comptroller had and has the money in hand to the credit of the Board of Public Instruction and the school trustees of the Tenth-ward.
    Upon the trial plaintiff’s complaint was dismissed,, and defendants entered judgment.
    The plaintiff appealed from the judgment.
    
      D. M. Porter, counsel for appellant.
    
      E. Delafield Smith and D. J. Dean, counsel for respondents.
   By the Court.—Freedman, J.

The motion for a nonsuit was granted on the ground that the contract sued upon was not the contract of the defendants, and that they were not liable on it, and if the defendants were in a position to raise the objection, the complaint was properly dismissed. In Ham v. The Mayor, &c (37 Superior Ct. R. 458), this court distinctly held that the defendants are not liable for the acts or contracts of the Board of Education or the Department of Public Instruction, and this decision, if applicable to the case at. bar, would be conclusive upon that point. But under the pleadings in this case the defendants could not raise the objection. The complaint charged the defendants with having made the contract for the work, and with having agreed to pay the contract price. The answer expressly admits these allegations, and refers to the school trustees of the Tenth-ward, as defendants’ agents. The defendants have therefore concluded themselves by such admission. A party, who formally and explicitly admits, by his pleading, that which establishes the plaintiff’s right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission (Paige v. Willet, 38 N. Y. 28).

The admission referred to also precludes the defendants from insisting in the absence of a formal plea to that effect, that the contract as made is an illegal one. Since the Code, any new matter constituting a defense or partial defense must be pleaded (McKyring v. Bull, 16 N. Y. 297), and hence the objection that a contract which is fair upon its face, is illegal or contrary to public policy, must be taken by answer (Cummings v. Barkalow, 4 Keyes, 514).

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

Curtis and Speir, JJ., concurred.  