
    GREGORY a. TRAINER.
    
      New York Common Pleas;
    
    
      General Term,
    
    
      January, 1855.
    Pleading.—Effect of Plea of Set-off.
    The rule of the old system of pleading, that a special plea admits the matters stated in the declaration, is applicable to pleadings under the Code.
    Where the defendant, in i a justice’s court, did not deny the plaintiff’s claim, but merely alleged a set-off1 which was not proven on the trial;—held, that judgment should have been rendered for the plaintiff.
    Appeal from a judgment of the Sixth District Court.
    The plaintiff claimed $13 damages, and the defendant pleaded a set-off. Neither party offered any testimony, and the justice rendered judgment for the defendant. The plaintiff appealed.
    
      J. P. Sherwood, for appellant,
    cited Code § 53—§ 64, especially subd. 1 to 8 and 15, § 168, Young v. Moore, 2 C. R., 143 ; De Courcy v. Spalding, 3 C. R., 16.
    
      J. Molony, for respondent.
    The plaintiff must prove something before the defendant is obliged to enter into any proofs at all. If he does not put in some proof he is clearly out of court.
   Ingbaham, F. J.

The complaint is this case was for damages to the plaintiff’s property, amounting to $13.

The defendant’s answer was a set-off, but what the set-off was, or what the amount of it was, does not appear.

Neither party offered any testimony, and the justice non-suited the plaintiff.

Under the former system of pleading, a special plea always admitted the matters contained in the declaration, and the rule is still applicable to pleadings under the Code.

The plaintiff claimed to recover for damages to his property, which claim was not denied by the defendant, but he relied in his answer on a set-off. The effect of these pleadings was to admit the plaintiff’s claim, and leave to the defendant the proof of his set-off. For want of such proof, the justice should have rendered judgment against the defendant for $13.

The judgment rendered in this case by the justice cannot be sustained.

Judgment reversed, and judgment ordered for plaintiff for $13 and costs.  