
    Andrew J. Connick et al. vs. Robert Morrison.
    Decided March 22, 1886.
    The Chief Justice and Justices James and Merrick sitting.
    Law. No. 26,251.
    An affidavit of defence under the 73d rule is insufficient when it amounts to no more than a change in terms of the plea, and does not state any specific defence or give any specific warning to the plaintiff of what the defendant means to rely upon for the purpose of defeating the claim.
    Appeal from a judgment for want of a sufficient affidavit of defence under the 73d rule of court.
    STATEMENT OE THE CASE.
    The declaration consisted of the common counts with a bill of particulars annexed, and with this was filed the following affidavit:
    “State ok New York, \ City & County of Neto York, j
    “ Before me, a notary public, duly commissioned and authorized to administer oaths, personally appeared Edwin Bouton, who, being duly sworn according to law upon his oath, says that he is a member of the firm of Connick & Bouton, and is one of the persons named as plaintiff in the annexed declaration; that said firm is composed of Andrew J. Connick and deponent, and that said firm has a cause of action against Robert Morrison, the person named as defendant in said declaration; that said cause of action consists óf a book account for goods and merchandise sold and delivered, and work and labor done, and materials furnished by the said Connick & Bouton, for the said Robert Morrison, at his request, as is more fully set forth in the annexed declaration and bill of particulars, and that the sum claimed by the said Connick & Bouton herein and in said declaration, to wit: fllfi.OO, with interest, as set forth in the declaration, is justly due to the said Connick & Bouton from the said Robert Morrison, exclusive of all set-offs and just ground of defence.
    “Edwin Bouton.
    “ Sworn to and subscribed before me this 23d day of June, 1885..
    “ [seal.] Louis Beckhardt,
    
      “Notary Public, New York Co.”
    
    The defendant pleaded :■ — ■
    1. “That he'never was indebted as alleged.
    2. “ That he did not promise as alleged.
    3. “And for a further plea says that, before this action was commenced, he, by payment, discharged the plaintiffs claim.”
    To this was annexed the following affidavit:
    “I, Robert Morrison, on oath, say that the foregoing pleas are correct and true, and I deny the plaintiffs’ right to recover from me the amount claimed in their declaration, or any other sum of money from me ; that, while the plaintiffs were said to have an existence as a firm, I had dealings with them down to about January 19, 1883, and purchased clothing from them at different times, and have paid them in full all that I ever promised or that I owe them.
    “Bobert Morrison.
    “ Subscribed and sworn to before me this 14th day of August, A. D. 1885.
    “A. K. Browne,
    “Notary;Public, D. G.”
    
    The plaintiff thereupon moved the court for judgment for want of a sufficient affidavit of defence which was granted. The defendant appealed.
    Mills Dean for plaintiff:
    The defendant’s pleas and affidavit taken together do not set forth specifically and in “ precise and distinct terms ” a defence to the plaintiff’s action.
    He is sued for the price of certain specific articles which are described in the bill of particulars to a degree of particularity ; the date of sale and delivery is given. If he did not buy the articles, or if he has paid for. them, it was an easy matter for him to say so, but he contents himself with filing inconsistent pleas, swearing that they are “ correct and true,” and then goes on and says he had dealings down to about January 19,1883 (the date of the alleged sale and delivery), and claims to have paid in full all he ever promised or that he owed.
    In Bank vs. Hitz, Mac A. & Mackey, 200, the learned Chief Justice says of the 73d rule:
    
      “ Now what does the rule mean, this being its office ? * * * It says that the defendant shall set out his grounds of defence and swear to them.”
    The defendant has not done this. The court does not know whether the defendant will claim at the trial that he never got the goods, that the plaintiffs gave them to him, or that he has paid for them. Under the first plea he might deny ever having received the goods; under the second plea he might claim the plaintiffs gave him the goods, and under the third plea he might claimthat he paid for the goods. He swears that all the pleas are true, but nowhere gives the grounds of his defence ; he nowhere denies that the plaintiffs sold and delivered the goods charged in the bill of particulars; he nowhere claims that he has paid for the goods sued for.
    What, then, are his grounds of defence ?
    The object of the 73d rule is the same as that of a plea, i. e., to inform the court of the nature or grounds of the defence, and the defendant here has wholly failed to set forth his grounds; he leaves us as much in the dark as we would be if he had filed only the plea of non-assumpsit.
    
    The pleas and affidavit must he taken as a whole; the affidavit treats the pleas as the “ record of facts ” (see Bank vs. Hitz, supra), and taken together they only set up “ a vague and general denial,” and fail to show “the particulars of the defence relied upon.” See Ford vs. Cornish, 2 Mac A., 59.
    A. K. Browne and T. Q. Hildebrant for defendant:
    In support of his plea, the defendant files his affidavit that the averments of the plea are true, and while it is not artistically drawn, it in substance complies fully with the requirements of the rule as interpreted in the case of Ford vs. Cornish, 2 Mac A., 57.
    Taking the plea and affidavit together, it is difficult to see how payment could be more strongly pleaded. It is stated: “ I had dealings with them down to about January 19 (the date of this bill), and purchased clothing from them at different times, and have paid them in full all that I ever promised or that I owe them.” The court will construe this plea according to the plain meaning of the words used, that the defendant states he has paid all he ever promised, and all he ever owed the plaintiffs.
    Rule 29 says: “ Every plea shall set forth the true defence upon which the defendant supposes he may defeat the plaintiff’s action. It may deny all or any particular mentioned allegation of the declaration, or it may confess and avoid,” &c.
    The defendant in this case has denied the promise, denied the indebtedness, and averred, in as plain language as can be used, that he has paid the account on which suit is brought. “ I have paid them in full all that I ever promised to pay or ever owed them.” Could language be more explicit? Will it be held that he should have specified the time, date of payment, the place where paid, the kind of money paid, the individual member of the firm to whom it was paid, whether by check, gold, currency, or otherwise ? Such a claim would be the climax of absurdity. What else than he has stated could he state unless he gave such particulars? We submit that rule 13 does not require a more specific statement. The plaintiff is entitled to judgment, “unless the defendant shall file, along with his plea, an affidavit of defence, denying the right of plaintiff as to the whole or some specified part oí his claim, and specifically stating also, in precise and distinct terms, the grounds of his defence, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.”
    “ I have paid them in full all that I ever promised or ever owed them.” If this is not stated in distinct and precise terms, we do not understand the meaning of the words. It will not be claimed that if the statement is true the plaintiff can recover in this case. If true; it certainly defeats the action.
   Mr. Justice Merrick

delivered the opinion of the court.

This was an appeal from a final judgment rendered by the circuit court under the T3d rule for the deficiency of the affidavit of defence under that rule.

The party pleaded “ never indebted,” that he did not promise, and that, before the action was commenced, he, by payment, discharged the claim, and then he made an affidavit under it in these words :

“ That the foregoing pleas are correct and true, and I deny the plaintiff’s right to recover from me the amount claimed in their declaration, or any other sum of money from me ; that while the plaintiffs were said to have an existence as a firm I had dealings with them down to about January 19,1888, and purchased clothing from them at different times, and had paid them in full all that I ever promised or that I owe them.”

The rule requires that, along with the pleas, there shall be a specific statement of defence. Now it is quite apparent upon reading this affidavit that it is no more than a change of the terms in the plea, but does not state any specific defence or give any specific warning to the plaintiff as to what the defendant means to rely upon for the purpose of defeating the claim. It is a matter entirely free from doubt in the mind of the court that this affidavit which I have read does not conform to the spirit and requirement of the rule, and therefore the judgment of the circuit court must be affirmed.  