#### Lena Tum Suden, Plaintiff, *v.*William Jurgens et al., Defendants.

(Supreme Court, Queens Trial Term,

November, 1900.)

Pleading — Matter provable under a general denial in conversion.

A general denial to a complaint alleging a wrongful taking and conversion of personal property is not merely a denial of the taking, but is a denial of a wrongful taking, and any evidence to prove that the taking was not wrongful but lawful is competent thereunder.

Where the plaintiff sues for the wrongful taking of her chattels and upon the trial proves her title to them under bills of sale from her husband to a third party and from the latter to her, and the defendants plead a general denial and also justify the taking under an attachment against her husband, they may, under their general denial, show that the bills of sale were colorable and fraudulent and are not precluded from such" proof by having failed to plead as a defence that such was the character of the bills — the reason of the rule being that such a denial, tending to show a lawful taking by the defendants, is not new matter and therefore need not be pleaded as a defence.

Motion by the plaintiff on the judge’s minutes for a new trial on a verdict for defendants.

This action was brought against the sheriff of Queens county for the alleged wrongful taking and conversion of chattels, *i.*e., the stock and fixtures of a retail grocery store. The plaintiff and In's two indemnitors in the action in which the sheriff took the said chattels under a writ of attachment, as is alleged in the complaint, have been substituted as defendants. The answer is a general denial; and then a defence that the plaintiff’s husband being the owner of the said chattels and business, and indebted to the defendant Jurgens for goods purchased, the said Jurgens began an action in the Supreme Court to recover the price thereof, and that therein the said attachment was obtained, and the said chattels taken thereunder.

To prove her title the plaintiff introduced in evidence a bill of sale of the said business and chattels by her husband to one Milk, and another" bill of sale thereof by the latter to her. The defend*661ants proved the writ of attachment against her husband, and its validity, and the debt for which it was granted, and the taking of the chattels under such writ, and introduced other evidence tending to show that there was in reality no sale and delivery, but that the said two bills of sale were a sham and fraudulent, being intended only to make color and pretense of a sale and delivery. This latter evidence was objected to by the plaintiff on the ground that the defendants had not pleaded as a defence that the said bills of sale were fraudulent; and on the same ground objection was made to submitting that question to the jury.

H. B. Bradbury for motion.

W. W. Butcher opposed.

Gaynor, J.:

It was not necessary to plead as a *“*defence ” that the sales, and the bills of sale, were sham or fraudulent. That was not a defence, but within the general issue raised by the general denial. A defence can consist only of matter which cannot be proved under a denial. It can only be of new matter, *i. e.,*matter outside of the issue raised, or which can be raised, by a denial. First in an answer come *“*denials ”; and then “ defences”, if there be any (Code Civ. Pro., § 500; Cruikshank v. Press Publishing Co., 32 Misc. Rep. 152). The allegation in an action of conversion is not merely of a taking, but of a “ wrongful ” taking. A general denial thereof is a denial of a wrongful taking, and not merely of a taking. The issue raised thereby is therefore not whether there was a taking, but whether there was a “ wrongful ” taking, and evidence to show that the taking was not wrongful but lawful is admissible under such issue. It is the same as in actions for torts generally. In an action for malicious prosecution, for example, the allegation of the complaint is not merely that the defendant prosecuted the plaintiff but that he prosecuted him maliciously and without probable cause. A general denial thereof is not that the defendant did prosecute the plaintiff, but that he prosecuted him maliciously and without probable cause; and under that issue any evidence tending to show that there was probable cause and hence no malice is admissible. Evidence in the present action showing that the bills of sale were sham, and *662that there was in fact no sale and delivery, showed that the taking was not wrongful but lawful; and that was the issue.

This rule of pleading is so plain and logical, and of such long standing, that no citation of authority ought to be made for it. There may be some inadvertent *dicta*apparently against it, as in *Beaty*v. *Swarthout*(32 Barb. 293), but that is nothing to scientific lawyers. The report of that case is quite blind, but it appears that the evidence to show that the sale to the plaintiff by the alleged execution debtor was fraudulent was excluded because there was no *“*prior proof of a lawful execution ”. There being no execution, of course the sheriff had no foundation to make any proof at all. He could only justify his act under the license of an execution. The case of *Van Dewater*v. *Gear*(21 App. Div. 201) is also cited to me. There, also, there was no lawful attachment or execution, which left the constable a mere trespasser, and with no standing to show that the bill of sale to the plaintiff was fraudulent, or to defend at all. This was all that was presented, and therefore all that was or could be decided in that case. If the opinion is broader it is to that extent unauthoritative and inadvertent. In *Weaver*v. *Barden*(49 N. Y. 286) the question of pleading now being considered was not up at all, much less decided. That was not a tort action but a suit in equity. One judge made some unauthoritative observations which strangely enough seem to be taken as decisive of the present question, whereas, they are not even akin to it, as may be readily seen from the facts of that case. The other cited decisions, like *Milbank*v. *Jones*(127 N. Y. 371), were in actions on contract, and are plainly irrelevant. That the contract was fraudulent or void for any reason had of course to be pleaded as a “ defence ”. The general denial, which was only a denial of the making of the contract, raised no such question.

Apart from the science of the matter, it may serve a purpose to point out that it must be very seldom in a case like this that the defendant knows anything of the pretended sale and bill of sale until they are revealed by the plaintiff at the trial. How then can it be said he should have pleaded that they were sham? No such rule of pleading ever existed, and any intimation to the contrary is inadvertent.

The motion is denied,