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,