This action was brought to recover a balance alleged to be due to the plaintiff for excavating 3,475 cubic yards of rock for the defendant. On the trial the defendant sought to show (1) that the plaintiff had not fulfilled. the provision of the contract which required him to break up the rock into building stones small enough for two men to lift each piece; and (2) that the 3,475 cubic *608yards of rock actually excavated included a considerable quantity taken from a lower level than that specified in the contract' as the desired' depth of the excavation. The trial court allowed the defendant to put in his proof in support of the first proposition, but' excluded all evidence tending to pro.ve that a portion of the excavation was below the depth designated in the contract, holding .that no such defense had been pleaded.
In this ruling I think .the learned judge Was right.- The complaint alleged. that, “At South Mount Vernon,: in the county of Westchester-in the- State of New York,- between and including the fourth day of April, 1891, and the. 25th.day of July, 1891, both inclusive, the plaintiff rendered and performed certain work,, labor and services, for the defendant, consisting of the blasting, exca-vating and removing of three thousand four hundred and seventy-five cubic yards of. rock.” This-allegation was not denied-. In the-2d subdivision of the answer the defendant set out the, contract substantially in accordance with its terms as proved upon -the. trial, and then, proceeded to aver, “That the work,, labor and services’ done by the plaintiff for the defendant, and alleged in the complaint,' were done and performed under and in pursuance of the said contract and not otherwise.” Here was the clearest sort of admission and averment that -the 3,áJ5 cubic yard’s of. excavation, for which, the plaintiff was. seeking payment, was work done under the contract between the parties; and, if so, it must have been work for which the plaintiff was entitled to- be paid. With such a'-statement in his pleading the -defendant could not properly be allowed to prove that a portion of this very work was done outside the contract and,, hence, should not’be paid foil
•, It -seems probable that the importance of this- defense was not. .44 impressed upon the mind of the learned Counsel for the appellant, when he drew the answer, as so" skillfuiA-jpl'e^aer would hardly have-. omitted to state it-in-a form which would ai the. meaning.of no doubt as to-
' The judgment should be
jt
All concurred.
Judgment and order affirmed, with costs..