This appeal presents all of the questions decided in Armour Packing Co. v. Edison Electric Illuminating Co. (115 App. Div. 51). An additional question arises here in this manner: The defendant in addition to alleging that the .payments were made pursuant to specific terms in writing between the parties, avers as a second separate defense, that prior to the commencement of this action the plaintiff settled and adjusted, all accounts of the déféndant against the plaintiff for electric light current, furnished at the localities named in the complaint and the plaintiff paid defendant in full therefor. 'The plaintiff demurs to this second separate defense, as well as'to the other, on the ground that the same is insufficient in law upon the face thereof and the demurrer should be sustained. This allégation in the answer.is nothing more than a reiteration of the allegations in the complaint that the plaintiff paid in full under its contract for all electric current furnished by the defendant. The suggestion made by the respondent that this is an allegation of accord and satisfaction or a pleading of a release does not meet the situation, for it fails to allege that the adjustment was made of the matters and-things complained of in the complaint. The allegation of the payment of the bills is not the allegation- of payment of the plaintiff’s present claim, which is for unjust discrimination, and inasmuch as the gist of the action is an overcharge by reason of unjust discrimination, the payment of the bills is father a part of the cause of action than .a defense.
The judgment in this case must, therefore, also be reversed and the entire demurrer sustained.
Hirschberg, P. J., Gaynor,. Rich and Miller, JJ., concurred.
Judgment reversed and demurrer to the. separate defenses sustained, with costs, and new trial granted, costs to abide the final "award of costs.