majority">By the Court, Johnson, J.

The general question involved in this motion has been settled in Pugsley vs. Kesselburgh, decided at this term (ante p. 402). Two grounds of distinction between the cases are relied upon.

1st. That the admission of service of complaint and summons, required to be given by defendant, was not given. The defendant executed the proper. undertaking under section 56 of the Code of 1849, but has not literally complied with its terms. The object of the undertaking when it provides for this admission, seems only to be to ensure the defendant’s appearance in the Supreme Court, without putting the plaintiff to the trouble of serving him with the summons and complaint or of making proof by affidavit of such service. We think that this obligation was substantially performed by the defendant’s putting in an answer, the plaintiff having accepted the answer without the written admission, and so having waived his right to require a literal compliance with the terms of the undertaking. This waiver does not at all affect the identity of the suits.

The second ground taken is, that the answer in the Supreme Court is not the same as that before the justice. The Code (§ 60) provides that “ the answer of the defendant shall be the same which he made before the justice.” This is a right secured to the plaintiff and introduced for his benefit; that the defendant having by one answer ousted the jurisdiction of the justice, shall not resort to a different defence in the Supreme Court. The sec-tion likewise provides that “ the plaintiff shall complain for the same cause of action only on which he relied before the justice.” This obviously does not tie the plaintiff up to the exact form of words that he used before the justice; but only confines him to the same substantial cause of action. So likewise, the provision that the defendant’s answer is to be the same, does not require the same identical words, but only the same substantial defence. In this case the answer in the Supreme Court is attempted to be expressed in more lawyerlike phrases than that in the Justice’s *407Court, and to this there is no objection. It may be still only the same defence. Such, likewise, was the old rule (The People vs. The Albany Com. Pleas, 19 Wend. 123).

The answers in this case, however, differ in substance; that before the justice denies the obstruction alleged in the complaint, while that in the Supreme Court admits it, and relies only upon the justification set up in the answer in the Justice’s Court. I think that the defendant may abandon part of his defence before the justice when he comes to answer in the Supreme Court,' and that, notwithstanding, the defence will be the same within the meaning of the statute. The object of the provision is to prevent new defences being interposed in the Supreme Court, not to require old ones to be insisted on when found not to be tenable. It would put the plaintiff strangely in the defendant’s power, if by abandoning one of his defences he could deprive the plaintiff" of the benefit of the statute; and it would be equally inconvenient to hold that in order to have the benefit of the statute, the plaintiff must by motion compel the defendant to interpose a defence which he no longer desired to rely upon. Yet one or the other of these views must be adopted unless the practice is settled as before mentioned.

This case must therefore follow that of Pugsley vs. Kesselburgh. Motion to dismiss granted with ten dollars costs.

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