The opinion
Stroud, J.
concurred in refusing a new trial, and said, in the main, his views corresponded with those expressed by Judge Jones. He adverted particularly to the pleadings in the cause, saying they were, unfortunately, not only in the brief form so common with us, but were substantially defective. He instanced, particularly, the several pleas of property in the defendant and in others: thus, the second plea is simply “property in the defen dant,” without a traverse of property in the plaintiff, as alleged in *459 the declaration. For want of this traverse, he remarked, the plea was quite defective. So, the replication, instead of traversing as it does the defendant's property (which, being matter of inducement, cannot be traversed, Stephens on Pleadings, 230,) should have merely re-asserted the plaintiff’s own property. For the true issue in all pleas of property in this action had respect to the property in the plaintiff; and when the defendant intended to deny this, it should be done by special plea or formal traverse. He referred to Bemus v. Beekman, 3 Wend. 671 ; Rogers v. Arnold, 12 Wend. 34, 35 ; Prosser v. Woodward. 21 Wend. 205 .
With respect to the question on the waiver of his lien by the defendant, he referred to Jones v. Cliff, 5 C. & P. 560, and Everett v. Saltus, 15 Wend. 474 , and remarked that this question ought, properly, to have been left to the jury with a strong intimation against the defendant. But as by the report of the judge who tried the cause, the plaintiff’s counsel had treated it as a question of law, and had so put it to the judge, he was not disposed to disturb the verdict.
Pettit, Pres, concurred.
Rule discharged.