majority">By the Court, Gridley, J.

The appellant seeks to reverse the judgment of the county court and of the justice, in this cause, for the error of the justice in admitting and rejecting evidence upon the trial.

I. The defendant offered to prove, by one Nelson J. Davis, that the hay, for which the suit was' brought, was good for-nothing, and that no use could be made of it, and that when it was delivered the defendant was absent from home and did not see it. (1.) The hay had been purchased at $10 per ton, (to be delivered at the place where it was actually delivered,) without any fraud on the part of the plaintiff, and after an examination of it by the defendant, with all the opportunity to know its condition and quality, possessed by the plaintiff. The facts offered in evidence, therefore, formed no defense to the action. (See 2 Hill, 606; 18 Wend. 449; 4 Cowen, 440 ; 2 Kent's Com. 484, 5.) (2.) The evidence was inadmissible, for the reason that no such fact was set up in the answer. The averment in the answer was that the hay was “ very poor, and of very little value." There was no allegation that the hay was worth “nothing" and of “no value." If then, the evidence offered would be available as a defense, when proof that the hay was worth but little, and was very poor, would not, it is quite clear that the evidence was properly rejected for the want of a proper averment.

II. The defendant also offered to prove that when the parties Were disputing about the hay, the plaintiff admitted that he sold *21the hay for good hay, and then to prove that the hay was good for nothing. The defendant’s counsel argues that this was substantially an offer to show a warranty of the hay and a breach of such warranty. We think, however, the facts offered would not necessarily amount to a warranty ; but if they did, then the evidence was inadmissible, for the reason that no such defense was stated in the answer. To constitute a defense to the action, the defendant was bound to make out a case of fraud or of warranty, and neither was stated in the answer.

III. There was no error in receiving evidence of the price of hay at Little Falls, a distance of three miles from Fink’s basin where the hay was to be delivered. That was in the immediate neighborhood, and the evidence therefore properly received. (8 Wend. 435.) This evidence was offered and received in relation to the claim for the difference in value between the hay which the defendant refused to receive and the stipulated price. The judgment could not have embraced any damages arising from that cause, and therefore the evidence, even if improperly received, forms no ground for the granting of a new trial. (12 Wend. 41. 2 Hill, 205.)

We are of the opinion, for these reasons, that no error was committed on the trial of the cause for which a new trial ought to be granted; and we are satisfied that the defendant has suffered no injustice by the judgment.

Judgment affirmed.

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