
    Lazarus Weil, Berthold Weil and Benjamin L. Weil, Appellants, v. The Unique Electric Device Co., Respondent.
    (City Court of New York, General Term,
    December, 1902.)
    Pleading — Separate defense when permissible — Entire contract of sale — Effect, on duty to accept further deliveries, of a failure to rescind on the first delivery, objected to — Waiver of tender.
    Where a complaint for the price alleges a single sale of 3,000 battery cases, delivery, acceptance and payment of 1,000, tender and refusal of the balance, and the answer denies everything except the making of the contract, the defendant is entitled to interpose as a separate defense its claim that the sale was by sample and the 1,000 cases inferior to it, and this because it could not show these facts, constituting new matter, under the denial.
    The court, however, held that the separate defense did not set up ■ .facts sufficient to■ constitute a defense, considering that, as the contract was entire and executory and the defendant had not rescinded and restored at the time of the delivery of the 1,000 cases, it had acquiesced in the quality of that lot and must accept the balance if equal in quality.
    Tender of the balance is waived where the vendee notifies the vendor, upon acceptance of the 1,000 cases, that it will not accept future deliveries unless equal to the sample.
    Appeal from an interlocutory judgment overruling a demurrer to a separate defense pleaded by the defendant.
    Felix H. Levy (M. L. Halff, of counsel), for appellants.
    Bennet & Silverman (William S. Bennet, of counsel), for respondent.
   Conlan, J.

'JL'he action is to recover the stipulated purchase price of certain merchandise sold defendant. The complaint alleges the sale of 3,000 battery cases, the delivery and acceptance of a payment for 1,000 of that number, and a subsequent tender of the balance thereof, acceptance of which was refused. The answer admits the making of the contract, but denies all other material allegations of the complaint. As a separate defense it repeats the denials in question and alleges that defendant agreed to purchase the cases in question at the price stipulated, provided that said cases when delivered were equal in quality to sample exhibited the defendant at the time of purchase; that 1,000 of said cases were thereafter delivered on account of said sale, but that they failed to equal said sample in many particulars and were not in accordance with the agreement; that defendant accepted same but notified plaintiffs that it would refuse to take the balance of the contract number unless they complied with the sample, and that none of the same has been delivered or tendered. Plaintiffs demurred to this separate defense upon the ground that it is insufficient in law upon the face thereof.' From an interlocutory judgment overruling the same this appeal is taken.

The demurrer can only be sustained in the event that the defense ” in question fails to set forth “ new matter,” that is, matter not embraced within the issue raised, or which might be raised by a denial, and, therefore, not provable under a denial. The rule is well settled that under a general denial the defendant may give evidence tending to disprove any fact which plaintiff is hound to prove in order to recover, and that, if other facts are relied upon as a defense, the defendant, in order to avail himself of them, must plead them. Milbank v. Jones, 127 N. Y. 376.

The matter in avoidance here can hardly be said to be provable under a denial. If plaintiffs prove the original order and the delivery and acceptance of the thousand cases, and tender of the balance, would it be competent to show that the sale was by sample, and that the goods tendered were inferior thereto ? I think not, and that is the test determinable of this question. The authorities cited by plaintiff, principally Durst v. Brooklyn Heights R. R. Co., 33 Misc. Rep. 124, and inferentially, Staten Island M. R. R. Co. v. Hinchcliffe, 34 id. 624, and the case of Levy v. Metropolitan St. R. Co., 34 id. 220, have been disapproved in Donovan v. Main, 74 App. Div. 44.

To hold under the circumstances that the separate defense was demurrable for the reason assigned requires a construction altogether too rigid and narrow. I am of the opinion, however, that the demurrer must be sustained, for the reason that the defense in question fails to state facts sufficient to constitute a defense. The sale in question, according to defendant, was an executory one, and when it received the first lot of a thousand cases and found them not up to sample, instead of accepting and paying therefor, it was its duty to rescind the sale and return, or offer to return, the goods; its failure so to do was an acquiescence on its part of the quality of the cases in question. Hargous v. Stone, 5 N. Y. 86; Copley Iron Co. v. Pope, 108 id. 236.

The contract then being an entire one, the duty was incumbent on defendant to receive the balance of the order, provided they were of similar quality to the lot already delivered. The notice to plaintiffs that it would not accept the remaining 2,000 cases unless they complied with the sample was, under the circumstances, a breach of contract on defendant’s part, and operated as a waiver of tender. Windmuller v. Pope, 107 N. Y. 675.

Notwithstanding the provisions of section 519 of the Code of Civil Procedure, that the allegations of a pleading must be liberally construed with a view to substantial justice between the parties, and the principle that pleadings against demurrer will be deemed to allege whatever can be implied from its statements by fair and reasonable intendment (Kain v. Larkin, 141 N. Y. 151), I am. inclined to the opinion that the demurrer should he sustained. The interlocutory judgment appealed from should, therefore, be reversed, with costs, and the demurrer sustained, with costs) with leave to defendant to serve an amended answer on payment of said costs.

McCarthy and Seabury, JJ., concur.

■Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to serve an amended answer on payment of costs.  