(concurring in result.) This action was brought to recover from the defendant a certain sum of money, with interest. The complaint states that the sum of $5,000 was in June, 1866, received by the defendant, and that it has ever since been held by him in trust for the plaintiff; that the conditions of the trust were such as to allow the plaintiff to terminate it at his election .at any time thereafter; that in February, 1886, the trust was so terminated by a demand for the payment of the principal and accrued interest; and that the defendant refused payment. The answer contains a general denial. At the trial evidence was adduced by both parties, and the jury found for the defendant. The principal question presented by plaintiff’s exceptions is whether, under the answer containing a general denial only, it w.as competent for the defendant to establish, as an affirmative defense, the illegality of the contract sued upon. This the defendant was permitted to do, against the repeated objections and exceptions of the plaintiff. In approaching the determination of this question, it may be conceded, at the outset, that under the system of practice prevailing at common law, the evidence would have been admissible under the general issue; for, under the general issue in assumpsit, anything was admissible which showed, or tended to show, that the plaintiff never had a cause of action. So it may be conceded that under a general denial in an answer in an action on contract the- defendant may, under the Code as well %s at common law, urge that plaintiff’s evidence shows that no valid contract was made, and that for that reason he is entitled to a dismissal of the complaint. Cary v. Telegraph Co., 20 Abb. N. C. 333; Russell v. Burton, 66 Barb. 539; Oscanyan v. Arms Co., 103 U. S. 261. But it is quite another thing for a defendant to introduce, under a general denial, affirmative proof of illegality, in order to overcome a contract which on plaintiff’s showing either appears to be valid, or presents a question for the jury as to whether or not it is valid. In such a case the defense of illegality, as an affirmative defense, is new matter, which, under the Code, must be pleaded in order to be proved. Honegger v. Wettstein, 94 N. Y. 252; Goodwin v. Insurance Co., 73 N. Y. 480; Cummins v. Barkalow, 1 Abb. Dec. 479; Codd v. Rathbone, 19 N. Y. 37; Bank v. Foster, 44 Barb. 87; O'Toole v. Garvin, 1 Hun, 92; Haywood v. Jones, 10 Hun, 500; Meyers v. Dorman, 34 Hun, 115; May v. Burras, 13 Abb. N. C. 384; Boswell v. Welshoefer, 9 Daly, 196. For the same reason it has been repeatedly held by this-court that, when the answer admits the making and the existence of the contract sued upon, and contains no allegations apprising the plaintiff that the nullity of the contract is meant to be relied on, the invalidity of the contract cannot he raised under the answer. Schreyer v. Mayor, etc., 39 N. Y. Super. Ct. 1; Pavement Co. v. Monheimer, 41 N. Y. Super. Ct. 184. For the foregoing reasons I am clearly of the opinion that the defendant should not have been permitted to show affirmatively, as a part of his ease, that the contract wras illegal, on the ground that it was against public policy. The opinions expressed by my associates have satisfied me, however, that the said error does not help the plaintiff, because his own proof does not sustain the cause of action alleged in the complaint, and because, irrespective of the evidence erroneously admitted, the illegality of the contract sufficiently appears. From these considerations it follows either that the complaint should have been dismissed, or that, irrespective of the evidence erroneously admitted, a verdict should have been directed in defendant’s favor. The judgment and order should be affirmed, with costs. 1