APPEAL by the plaintiff, Max Feinberg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 2d day of May, 1910, upon the report of a referee dismissing the complaint upon the merits.
C. J. Vert, for the appellant.
Wilmer H. Dunn [John H. Booth of counsel], for the respondent.
This case was before the court in 118 Appellate Division, 497, and in addition to the facts there stated it now appears that the plaintiff and his wife obtained from the judgment creditor, Fonda, the money with which the wood in question was chopped and prepared for market, under the representation that the business was the wife's business and that she was getting out the wood for Fonda, and that the moneys advanced were in part payment of the wood so to be furnished to him. Upon a refusal to deliver the wood, Fonda obtained a judgment against the wife and levied upon the wood in question, and the plaintiff brings this action claiming to be the owner of the wood, asserting that it was cut upon his land and that he instead of his wife was doing the business.
The appellant vigorously challenges the statement in the former opinion that it is not necessary to plead the facts relied upon to create an equitable estoppel. An equitable estoppel ordinarily may be made available either by a plea in bar or may be used as evidence upon the trial. If relied upon as evidence only, it is no more necessary to plead it than to plead any other kind of evidence.
In Krekeler v. Ritter (62 N.Y. 372) the plaintiff, seeking to set aside the lien of a mortgage on the ground that it was procured by fraud, was defeated upon the trial by proof of another judgment in defendant's favor involving the same issue, although it was not pleaded, ALLEN, J., saying for the court: 'Had it been offered as constituting a bar, or as an estoppel to the action, it would have been inadmissible, not having been pleaded as a defense. * * * But as evidence of a fact in issue it was competent, although not pleaded, like any other evidence, whether documentary or oral. A party is never required to disclose his evidence by his pleadings. The evidence was competent to disprove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact, in an action between the same parties.'
In Meeder v. Provident Savings Society (58 A.D. 81; 171 N.Y. 432) an assignee of a life insurance policy pleaded
that the premiums had been fully paid; the answer denied the allegation and that constituted the defense. It was held competent under the pleadings for the plaintiff to prove that before he took an assignment of the policy the defendant had assumed the payment of the premium in question, and that the defendant was estopped from denying such proof of payment.
In Prevot v. Lawrence (51 N.Y. 219) the essential fact to establish the estoppel was not pleaded, but the estoppel was treated as evidence and given effect as such.
It must, therefore, be considered that the defendant proved conclusively in this case that the wood was the property of the wife and, therefore, subject to the execution. The estoppel as evidence is as available to the ...