Clarke v. Ford — 121 A.D. 742

Majority

p. 742

Frank M. Clarke, Doing Business under the Name of John D. Clarke’s Son, Respondent, v. W. W. Ford, Appellant.

First Department,

November 8, 1907.

Headnote

Trial — evidence admissible under general denial.

Under a general denial to a complaint to recover for work and services in altering a' heating apparatus at defendant’s request, the latter is entitled, to show that. ■ the alterations were ■ made by the plaintiff in fulfillment of . his guaranty that. the apparatus should produce a'certain degree of heat which it failed to j develop. Such evidence directly controverts facts plaintiff was required to prove in order to recover and hence is admissible under a general denial.

Appeal by the defendant, W. W. Ford, from-a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 25th day of January, 1907, upon the verdict, of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 13th day of .

p. 743

February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Eben H. P. Squire, for the appellant.

George, A. Steves, for the respondent.

- The plaintiff" alleged as a cause of action that “ on of about February 20, 1903, the plaintiff .rendered services to and performed work for the defendant at his request in altering the heating apparatus in the house of defendant at White Plains, Flew York, and that the plaintiff then and there furnished the material necessary in the said work and incident thereto upon the like request,” and that “ thé agreed price and reasonable value of said services performed and material furnished was One hundred forty-two and forty-four one-hundrédths dollars.” ■ The answer of the defendant denies these allegations, and upon the trial, after the plaintiff had testified to the facts above alleged," the defendant offered to prove that the plaintiff had previously put in the heating apparatus under a contract which provided- that it should produce seventy degrees of heat in zero weather; that the apparatus failed to' develop this degree of heat, and that'the work performed by the plaintiff was done for the purpose of bringing the apparatus up to the requirements of the original contract. This evidence was rejected by the learned court, and upon plaintiff’s motion' a verdict was directed, the defendant seasonably objecting, and taking exceptions to the rulings.

We believe the rule is too well settled to require elaborate discussion at this time that under a general denial the defendant may prove any state of facts which tends to show that the facts alleged and proved by the plaintiff in support of his cause are not true, or to quote .the language óf the court in Griffin v. Long Island R. R. Co. ( 101 N. Y. 348 , 354): “ Under our system of practice, and under every rational, logical system of pleading,'the defendant must, under a general denial, be permitted to controvert by evidence everything which the plaintiff is bound in: the first instance to prove to make out his cause of action.” (Milbank v. Jones, 141 N. Y. 340 , 345.) Evidence that the plaintiff performed, this work for the

p. 744

purpose of fulfilling his original contract completely disproved the cause of action set up by the plaintiff, and it was error to exclude the evidence. ■

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the'event.

Patterson, P. J., Laugh-lin, Houghton and Scott, JJ., .concurred.

' J ndgment and order reversed, new trial - ordered, costs to appellant to abide event.

Cases cited

Griffin v. Long Island Railroad 101 N. Y. 348 N.Y. 1886-02-02 at 354 p. 743
Milbank v. Jones 141 N. Y. 340 N.Y. 1894-02-27 at 345 p. 743