(dissenting):
The complaint avers a sale and delivery of barley of a specified value. The answer is a general denial. The evidence given by the defendants established the sale and delivery of the barley sued for, and if allowed to stand, its only other effect would have been to avoid the liability arising therefrom, by showing that the barley was sold and delivered pursuant to a special contract, which the plaintiff had broken, and that the defendants had sustained damages by reason of such breach. That was new matter constituting a defense, and the Code (§ 149) requires that it shall be pleaded. Putting the facts proved into the answer, they would have amounted to a simple confession and avoidance of the allegations contained in the complaint, instead of a denial thereof. It would have been *485unfair and a surprise to the plaintiff, to permit such a defense to come in under a general denial.
I think the ruling of the judge at Circuit on this point was correct, and that it is abundantly sustained by authority. (McKyring v. Bull, 16 N. Y., 297; Kniffen v. McConnell, 30 id., 285; Paige v. Willet, 38 id., 28.)
Nor can I discover any error in the refusal of leave to amend the answer. The amendment sought would have substantially changed the defense.
The judgment and order must be affirmed, with costs.
Present — Müllin, P. J., Smith and Gilbert, JJ.Judgment reversed and a new trial granted, with costs to abide event.