
    Ida Niggli, App’lt, v. Frank X. Foehry et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Pleading—Answer—Accord and satisfaction.
    The defense of accord and satisfaction cannot be proved unless pleaded,
    Appeal from a judgment entered on a verdict in favor of de fendants, and from an order denying a motion for a° new trial,, made on the minutes of the court.
    
      Richard E. White, for app’lt; P. Chamberlain, for resp’ts.
   Lewis, J.

This action was brought to recover the value of a quantity of building stone, which it was alleged in the complaint the defendants had quarried and taken from the plaintiff’s premises in the city of Rochester, without her consent. It was a disputed question of fact upon the trial whether the defendants had taken any stone from the plaintiff’s premises. The defendants owned lands adjoining the plaintiff’s lot, upon which there was a. stone quarry, which they were engaged in working. It was the claim of the plaintiff that, in quarrying stone, they trespassed upon and took stone from her premises. The plaintiff’s evidence left the question as to the quantity of stone taken, if any, in very much doubt. The evidence of the defendants tended to negative the plaintiff’s evidence as to their having taken stone from her premises. It was,a question of fact for the jury, and they found for the defendants.

It was not competent for the defendants to prove an accord and satisfaction, for no such defense was pleaded. There was evidence admitted tending to prove an accord and satisfaction. It does not appear from the case that there was any objection made to the admission of this evidence. The plaintiff introduced evidence tending to prove that the removal of the stone by the defendants ..lessened the market value of her premises. There was no allegation in the complaint which justified the litigation of that question, but, the plaintiff having introduced such evidence, it was competent for the defendants to prove the value of the stone in .the quarry before it was quarried, as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.

The error in the charge to the jury as to the measure of damages was fully corrected by -the subsequent charge of the court at the request of the plaintiff’s counsel. The true rule of damages was finally presented to the jury, so plainly that it is not at all likely that they were misled by the error in the charge.

The judgment and order appealed from should be affirmed.

All concur.  