OPINION
DAVIS, J.
On the
14th of July, 1883, appellee executed to Benjamin W. Dakin
his note, due at six months, for $ 300, with five per cent.
attorney's fees and eight per cent. interest until paid.
This action was instituted on the note on the 11th day of
January, 1893.
No
question arises on this appeal so far as the first and second
paragraphs of the answer are concerned.
The
third paragraph of the answer is as follows:
"For
further answer to the said complaint, by way of third
paragraph, said Russell alleges that subsequent to the date
of said note, to wit, on or about the day of June, 1891, the
defendant being financially embarrassed and in failing
circumstances, an oral agreement was entered into between
said Russell and said Dakin, by the terms of which said Dakin
agreed to accept the sum of three hundred dollars ($ 300) as
payment in full of all claims, damages, judgments and notes
which said Dakin held against said Russell. It was further
agreed in said contract that the said Russell would employ
him to work in and around his lumber yard, at the rate of
twelve dollars ($ 12) per week for the labor performed.
"Said
Russell alleges that he employed said Dakin under the said
arrangement, and did pay him in cash for all labor then
performed up to the day of December, 1892, when said Dakin,
of his own accord, voluntarily quit work. Said Russell
alleges that the labor thus performed by said Dakin, in fact,
was worth only the sum of nine dollars ($ 9) per week, but as
a part consideration in securing the cancellation of all said
notes, claims and demands, he paid said Dakin the extra sum
of three dollars ($ 3) per week for his work. Defendant
Russell alleges that the said three hundred
dollars ($ 300) was to be paid when said Dakin quit work for
him; that he offered him the said sum of three hundred
dollars ($ 300) on the said date when he quit work, but that
he refused to accept the same and cancel his said obligation
and return the notes, including the one sued upon. Said
Russell further alleges that he has paid said Dakin since he
quit work for him, and before this suit was commenced, the
sum of four hundred dollars ($ 400), the same being more than
is due him under his contract of June, 1891. By reason of the
foregoing facts said Russell alleges that there is nothing
due the plaintiff on said note. Wherefore he prays judgment
for costs, and asks for all other proper relief."
A
demurrer was sustained to this paragraph of answer by the
superior court in special term. Judgment was rendered in
behalf of appellant for $ 559.35. On appeal to general term
the judgment was reversed, with instructions to overrule the
demurrer to the third paragraph of the answer.
The
only error assigned in this court is that the superior court,
in general term, erred in reversing
the judgment of the court in special term.
The
only question presented for our consideration is whether the
answer is a good plea of...
