
    WILLIAM H. SAUNDERS, Respondent, v. DWIGHT S. CHAMBERLAIN, Appellant.
    
      Contract — measure of damages — Answer—general denial i/n — what ea/nnot be proved undei'— Power of County Court to amend pleading..
    Upon the representation of the defendant that he was the owner of a bond and mortgage given by the plaintiff, and which was then overdue, the latter agreed to and did pay to the former $180 upon his agreeing to carry the bond and mortgage for a year. Defendant did not own the mortgage, but by paying the owner of it $100 induced him to carry it for a year. Upon the foreclosure of the mortgage this $100 was allowed as a payment upon it.
    In this action, brought by the plaintiff to recover damages occasioned by the fraudulent representation of the defendant, held, that plaintiff was entitled to recover the twenty dollars, not applied upon the mortgage, with interest.
    The answer contained a general denial, and also denied that plaintiff was the proper or real party in interest, and alleged that he had no legal or equitable right to prosecute the action. Held, that under such answer the defendant could not prove an assignment of all the estate of the plaintiff to an assignee in bankruptcy, nor the schedule of his property.
    
      Quaere, whether upon an appeal from a judgment of the Justices’ Court the County Court has power to allow an amendment to the answer.
    Appeal from an order of tbe Wayne County Court denying a motion for a new trial, made on tbe minutes of tbe judge, in an action brought to that court by appeal from a Justice’s Court!
    In lS^ tbe plaintiff bad title to lands in Galen, on wbicb be bad executed a mortgage of about $4,500 to one W. H. Lyon. Lyon bad assigned tbe mortgage to Aaron Griswold.
    In 1872, and after assignment to Griswold,'and while Griswold owned tbe mortgage, defendant called upon plaintiff and. stated to plaintiff that be owned tbe mortgage; that it bad been assigned to him by Griswold; that there were payments due on tbe mortgage and be wanted it settled. The plaintiff, relying upon such statements, made an agreement with defendant by wbicb defendant agreed to carry said mortgage, and defer payment one year, in consideration of plaintiff’s paying defendant $120, in addition to tbe legal interest. In pursuance of such agreement, plaintiff paid to defendant, and defendant received for tbe purpose aforesaid, tbe sum of $120. At tbe time tbe defendant did not own tbe mortgage? and it bad not been assigned to bim. After defendant bad made tbe agreement witb plaintiff to carry said mortgage for a year, and before tbe $120' bad been paid by plaintiff, defendant went to Mr. Griswold, tbe owner of tbe mortgage, and asked bim if be would carry tbe mortgage a year for $100; Griswold consented to tbis; afterward, and some time in tbe year 1873, Mr. Griswold assigned and sold said mortgage to one Henry Grabam, wbo thereafter commenced a foreclosure of said mortgage, in wbicb said Saunders interposed a defense, among other things, claiming that tbe $100 received by Mr. Griswold as aforesaid should be applied on said mortgage, and tbe same was allowed and applied on tbe mortgage in said action; some time in January, 1877, plaintiff brought an action in a Justice’s Court against defendant to recover tbe said $120, or so much thereof as be was entitled to; and in said action recovered, before said justice, twenty dollars and interest and costs, amounting in tbe whole to thirty dollars and twenty cents, from which judgment tbe defendant appealed to tbe "Wayne County Court, where said cause was tried before Hon. G. W. Cowles and a jury, when tbe plaintiff again bad a verdict of twenty-six dollars and thirty-five cents.
    Tbe answer of tbe defendant contained a general denial, and also denied that plaintiff was tbe proper or real party in interest, and that be bad any legal or equitable right to prosecute tbe action against tbe defendant. Under tbis answer defendant offered to introduce in evidence an assignment by plaintiff of bis estate to an assignee in bankruptcy, wbicb offer was refused.
    
      D. 8. C ha/mberlam, appellant, in person.
    
      J. Vandenbv/rg, for tbe respondent.
   Smith, J.:

Tbe evidence, although conflicting, authorized tbe jury to find that tbe plaintiff was induced to pay tbe defendant $120 to carry tbe bond and mortgage for a year by tbe representation of tbe defendant that be owned tbe bond and mortgage, and that such representation was untrue. Tbe intendment from their verdict is that they so found. Upon tbis state of facts, tbe only question on tbe merits is whether tbe plaintiff was misled to bis injury. That be was damnified seems clear. Had tbe defendant been tbe owner of tbe bond and mortgage, tbe plaintiff could have insisted, in equity, that tbe $120 should be regarded as a payment upon them, tbe agreement for forbearance being usurious. (Crane v. Hubbell, 7 Paige, 413; Judd v. Seaver, 8 id., 548.) Tbe $100 which tbe defendant paid to Griswold for tbe same purpose was so applied, it baying been treated as a payment for tbe plaintiff’s benefit; but as to tbe remaining twenty dollars, no such application was or could be made, it not baying been paid to tbe true owner of tbe bond and mortgage. To tbe amount of tbe twenty dollars tbe plaintiff was damnified, and has a right of action; and tbe verdict being for that amount of damages only, with interest, is not excessive as claimed by tbe appellant.

Tbe defendant’s offer to prove tbe assignment and schedule in bankruptcy was properly excluded, for tbe reason that tbe answer did not set up that tbe plaintiff bad transferred tbe claim in suit. Such transfer, to have been available as a defense, should have been pleaded as new matter. Proof of it was not admissible under a general denial; nor was it admissible under tbe second count in tbe answer, which averred a mere legal conclusion, to wit, that tbe plaintiff was not tbe proper party in interest in tbe action, and bad no right to prosecute tbe same. Tbe issuable facts should have been alleged. (Russell v. Clapp, 7 Barb., 482; Seeley v. Engell, 17 id., 530, reversed, but not on this point, 13 N. Y., 542; Fosdick v. Groff, 22 How., 158.)

Tbe refusal of tbe court below to allow an amendment of tbe answer (even if tbe court bad power to allow an amendment on appeal from a Justice’s Court, a point which it is not necessary to decide) was matter of discretion, and cannot be reviewed on appeal.

Tbe point that tbe action cannot be maintained because it' was not brought within a year after tbe money was paid is not well taken. Tbe action is not to recover money paid upon a usurious agreement, but to recover damages sustained by means of tbe alleged misrepresentation.

Tbe order should be affirmed.

MulliN, P. J., and Talcott, J., concurred.

Order affirmed.  