(No. 61.)

Counter-claim for damages by reason of goods sold not corresponding to sample, in an action on a note given for the the purchase price.1

Title of the Cause.

The defendant for answer to the plaintiff's complaint, upon information and belief, denies that the note mentioned and referred to in said complaint, was, after it was made by him and before it became due, duly transferred and delivered to the plaintiff for value.

And defendant avers that said note was made and delivered by him to one Dillinger, who, this defendant is informed and believes, was, at that time, an agent or servant of the plaintiff, and acting as such, on behalf of the plaintiff, in that transaction, in exchange for a quantity of segars, which were sold, by sample, to the defendant at that time, by said Dillinger as such agent.

The answer is taken from the reported case, Allen v. Haskins (5 Duer, 332). Its sufficiency was adjudged on demurrer by the Superior Court, at General Term, the court holding that an answer containing a counter-claim is not demurrable, because it is not an answer to the whole of the plaintiff's cause of action; and that there is no rule which the Code prescribes by which to determine the sufficiency of an answer containing a counter-claim, except that it must state facts sufficient to constitute a good cause of action in favor of the defendant, and against the plaintiff, and that it be one of the second causes of action defined by section 150 of the Code.

Perhaps the allegations in the answer are not set forth with sufficient accuracy and certainty, and there should have been some averment to show either that there was an agreement or warranty that the segars delivered should correspond with the sample, or that there was a fraudulent concealment, &c. (See opinion of BOSWORTH, J., pp. 334, 335.)

That when said segars were delivered to this defendant they did not correspond with samples, and were not worth, in all, the sum of $20.

That as soon as the defendant learned the character of said segars, he offiered to said Dillinger, as such agent, to return them, but he refused to receive them, and said defendant is still ready and willing to return said segars.

Wherefore the defendant says he is damaged by the plaintiff, by the fraudulent sale aforesaid, in the sum of $100, which he claims to recoup from the amount of the said note; and he demands judgment against the plaintiff for the costs of this action. 1

(No. 62.)

Several counter-claims in an action for work and labor, alleging that work was done under special contracts, which plaintiff has not performed, and claiming damages for breach, and also to set-off money paid by defendant in finishing the work agreed on.2

SUPREME COURT.

Daniel Smith

agt.

Andrew Brady.

The defendant in this action, answering the complaint herein,

1 If the note had been paid, or the defendant had paid cash at the sale, his answer would, of course, have contained a prayer for judgment for the amount so paid, with interest.

2 The complaint in this case was an ordinary complaint to recover for work and labor and materials, claiming damages at a specified sum,

Denies that on the 9th day of June, 1851, or at any time since that day, he was or is indebted to the said plaintiff for materials furnished for, and for work and labor done at the request of, the said defendant, upon the premises of said defendant, at Far Rockaway, Long Island, in the sum of $2,295.60, as alleged in said complaint.

And the said defendant, further answering,1 saith, that the materials furnished, and the work and labor, mentioned in the said complaint, with the exception of the sum of $295.60 charged for extra work and materials, were furnished, and done and performed, under two certain agreements therefor, under seal, duly made and executed by the said plaintiff and the said defendant, copies whereof are hereunto annexed.

And the said defendant, further answering, saith, that the said plaintiff did not fulfill and perform the covenants, on his part to be kept and performed, in the said agreements contained. That the work done upon the cottages, in the said agreements mentioned, by the said plaintiff, was not in accordance with the said convenants; that the said work was not done in the best and most workmanlike manner, and to the entire satisfaction of the architects, Fields & Corrèja, as required by the said agreements; and the said defendant alleges, that the materials furnished by the said plaintiff under the said agreements were inferior in quality to those required by the plans and specifications, to which the said agreements refer, and to which this defendant begs leave to refer as part of the said agree

without claiming any contract price. I have inserted the whole answer as it is printed in the case, though the causes of defence are not so clearly separated and distinguished as the present practice requires, and perhaps the answer might be otherwise improved.

'This further defence, and each subsequent defence, should have been not only separately stated, but numbered.

ments, and a part of this his answer.

And the said defen

dant claims to have allowed to him, by way of recoupment or otherwise, the damages resulting from such violation of the said agreements by the said plaintiff.

And the said defendant, further answering, saith, that the work which the plaintiff undertook and promised to do, by the said agreements, was not done, and that the said buildings, or any or either of them, were not completed or finished on or before the 1st day of May, 1851, or at any time afterwards, as required by and according to the said agreements; and the said defendant avers that the said plaintiff never presented to him, the said defendant, a certificate signed by the said architects, Fields & Corrèja, or either of them, as required by said agreements, that the said cottages, or any or either of them, were completed, and that the said plaintiff never obtained such a certificate, and that none was ever given or made by the said architects.

And the said defendant, further answering, saith, that the said cottages were not ready for occupation until about the 6th day of June, 1851, and that the said defendant claims to have allowed him, by way of recoupment or otherwise, such damages as he shall prove to have resulted therefrom.

And the said defendant, further answering,' saith, that the said sum of $295.60, hereinbefore mentioned, is charged against this defendant for extra work and materials furnished for the said premises at Far Rockaway; that this

1 Where a counter-claim, set up in an answer, was embraced in five different specifications, numbered as five separate defences, it was held to be improperly stated. Each should be a complete single defence in itself, without reference to others; for a defence cannot be made out by connecting two or more separate defences together. (Spencer v. Babcock, 22 Barb., 327.)

defendant, upon information and belief, denies that for such extra materials and work there is due, or that he, the said defendant, owes to the said plaintiff, the sum last above mentioned. And the said defendant avers, that before the commencement of this action he disputed the charges of the said plaintiff for such extra work and materials, and offered to submit the same to the said architects, Fields & Corrèja, as provided by the said agreements, and that the plaintiff refused to submit the same to the said architects. And the said defendant alleges such refusal to be an objection to the plaintiff's right to recover the sum last above mentioned, or any part thereof.

And the said defendant, further answering, saith, that annexed hereto is a statement of the omissions or deficiencies of the said plaintiff, in the work and labor to be done, and the materials to be furnished, according to the provisions of the said agreements. That such omissions or deficiencies are the result of an examination of the said premises in the said complaint and agreements mentioned, made by the said architects, Fields and Corrèja, or one of them, and submitted to the said plaintiff; that the said plaintiff refused to allow the said omissions or deficiencies, and to deduct them from the amount he was to receive for his work and labor and materials furnished, and peremptorily refused to submit the account of omissions or deficiencies to the said Fields and Corrèja, as provided by the said agreements, although requested so to do. And the said defendant alleges, that the sum of $764.75 is a just and fair allowance for the omissions or deficiencies of the said plaintiff, which he will claim to have allowed him by way of payment, recoupment, reduction, set-off or otherwise, against any claim that may be established herein.

And the said defendant, further answering, saith, that the said plaintiff not having proceeded with the work of