2 Sweeny 248
The Superior Court of New York City
Decided March 5, 1870
The Superior Court of New York City · decided 1870-03-05
This action is brought to recover the price agreed to be paid by defendants for twenty-six hogsheads of sugar which were sold and delivered by plaintiffs to defendants. The answer sets up as a defense in bar that the sale was by sample, and that four of the hogsheads delivered were not of the kind and quality of sugar which the plaintiffs agreed to sell to the defendants, and did not correspond in kind and quality with the sample.
Decided 1870-03-05
¶1By the Court:
¶2The averments contained in the answer clearly constitute no defense. If there had been so substantial a variance as to render the four barrels less valuable than the sum agreed *251to be paid therefor, then the difference between the actual value and the price agreed might have been recouped by an answer containing proper averments. But the answer does not set up a recoupment. It is an answer in bar.
¶3Order and judgment affirmed with costs of appeal.