¶1There are authorities holding that a defendant may set up in his answer any matter arising before it is put in, whether it occurred after suit brought or not ( Willis agt. Clipp, 9 How. Pr., 568; Carpenter agt. Bell, 19 Abb. Pr., 263; Bennett agt. Annesly, 27 How. Pr., 184; Beebe agt. Dowd, 22 Barb., 255). That although not a plea in bar, it is an answer to the further1 maintenance of the suit, and, if true and sufficient, is equally effective in preventing a recovery (Carpenter agt. Bell, supra).The plaintiff cannot now object to the regularity of the plea, after having accepted it by going *144to trial upon the issue presented by it. If it was irregular for any reason, the remedy against it was one of practice to be determined "upon motion before the trial. The plaintiff elected to try the issue, and upon the trial the plea of payment as pleaded was fully proved. It follows, therefore, that there must he judgment for the defendants, with costs.
61 How. Pr. 142
Reimer v. Doerge
Decided June 15, 1881
New York Marine Court · decided 1881-06-15
This action was brought against the defendants as sureties upon an undertaking on appeal from the special to the general term of the court of common pleas. The appeal was dismissed on the 2d of Hay, 1881, and according to the terms of the undertaking the liability of the sureties became fixed. On the same day an execution upon the judgment was issued, which the defendant therein satisfied by paying the same to the sheriff on the 18th of Hay, 1881.
Cited by 2 later decisions — most recently February 1889
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1881-06-15
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