If the plaintiff was estopped from asserting his ownership because of dealings had with Fonda in behalf of his wife, it was entirely proper for the referee to find that he was the owner of the wood but was estopped from asserting his title as to Fonda and, therefore, as to this defendant. It does not matter whether plaintiff was owner or not if he is estopped from claiming he is.
Except for the holding of this court on the former appeal (118 App. Div. 497) to the effect that it is not necessary to plead facts relied upon to create an equitable estoppel, I should be of opinion that such a plea was necessary.
The authorities in this State are in some confusion respecting the necessity of setting up by an affirmative plea the defense of estoppel in pais. In Oreque v. Sears (17 Hun, 123) the former General Term of this department held, apparently with some hesitation, in an action of ejectment, that a defendant under a general denial might prove facts estopping the plaintiff from claiming, that a boundary line was different from what he represented it to be when the defendant purchased his land.
*869In Prevot v. Lawrence (51 N. Y. 219) and in Larremore v. Squires (30 Misc. Rep. 62) it was held that in an action for rent in which the tenant denied the landlord’s title, the plaintiff might without special plea show that the defendant went into possession under a lease from plaintiff and hence was estopped from denying his landlord’s title.
In Rogers v. King (66 Barb. 495) the defendant set up as a separate defense facts by way of estoppel and the plaintiff did not reply, and it was held that it was not necessary for him to do so.
The same situation appears with respect to permitting proof on the part of the plaintiff in Meeder v. Provident Savings Society (58 App. Div. 80; 171 N. Y. 432) where the complaint in an action upon a life insurance policy alleged that the premiums had been paid. The answer set up non-payment, and it was held that in reply to such a plea and proof, the plaintiff might show that he inquired of the defendant whether the premiums had been paid when he took an assignment of the policy, and was told that they had been, thus proving estoppel against the defendant’s claim that they were not paid. Also in Woolner v. Kill (93 FT. T. 576) it was held that a plaintiff might prove waiver in reply to defendant’s claim of nonperformance of contract.
These decisions relate to the necessity of pleading on behalf of the plaintiff, and throw little light on the subject because of the fact that it is not necessary for a plaintiff to reply to an affirmative defense unless the court so orders. (Code Civ. Proc. § 516; New York Life Ins. Co. v. Aitkin, 125 N. y. 660, 672.)
The only question passed on in Krekeler v. Ritter (62 N. Y. 372) was whether or not a former judgment was admissible in evidence as showing that the same issues between the parties had been formerly tried, the court in the course of its opinion remarking that had the judgment “ been offered as constituting a bar, or as an estoppel to the action, it would have been inadmissible, not having been pleaded as a defense.”
In Terry v. Buek (40 App. Div. 419) the rule was laid down that where plaintiff had plead facts showing an estoppel the defendant might take advantage of it in his own behalf without plea.
In Dresler v. Hard (57 N. Y. Super. Ct. 192) the rule is stated that when the matters relied upon by the defendant to constitute *870an estoppel do not affect the issues as made by the pleadings as to the original obligation, they must be pleaded in order to give the defendant the right to offer testimony in support of them.
Of course, under a general denial, the defendant has the right to controvert by evidence every fact which the plaintiff is bound to establish to make out his cause of action ( Whitney v. Whitney, 171 N. Y. 176, 181; Terry v. Munger, 49 Hun, 560), and under such rule, in an action for conversion, the defendant may show without such special pleading that the plaintiff had no title to the property which he claims was converted. (Raynor v. Timerson, 46 Barb. 518.)
So in the present case the defendant might have shown and the referee might have found that the wife and not the plaintiff was the owner of the wood in question. The referee did not so find, but found that the plaintiff was the owner but that he was estopped from asserting that he was.
In order to be entitled to make proof a defendant must plead as constituting a defense the Statute of Limitations (Devoe v. Lutz, 133 App. Div. 356); the Statute of Frauds (Crane v. Powell, 139 N Y. 379); forfeiture (Fischer v. Metropolitan Life Ins. Co., 167 id. 178); waiver (Grant v. Pratt & Lambert, 87 App. Div. 490), and I see no reason upon principle why a defendant should not be compelled to plead the facts which operate as an equitable estoppel against the plaintiff if he desires to take advantage of such a situation. The theory upon which a defendant is compelled to specially plead the Statute of Limitations, the Statute of Frauds, waiver and the like, is that he can avail himself of them if he chooses but need not if he does not desire. If he chooses to rely upon them he must set forth the facts as new matter constituting a defense to the plaintiff’s cause of action. The same reasoning applies to facts constituting an equitable estoppel. A defendant can avail himself of them if he wishes or he can abandon them if he desires. Proof that plaintiff so conducted himself as to lead Fonda to believe that his wife actually owned the wood, and to justify him in that belief, was pertinent upon the question as to who owned the wood and whether she or the plaintiff did. The- difficulty is that the learned referee found that as against all the world except Fonda, plaintiff was the owner, and that because of his conduct toward him he *871was estopped, without a special plea on behalf of defendant, from claiming ownership.
It is only because of the former decision in this same case that I concur in an affirmance of the present judgment.
Judgment affirmed, with costs.