Columbus, Hocking Valley & Toledo Railroad v. Ellis — 25 Abb. N. Cas. 150

Majority

p. 150

COLUMBUS, HOCKING VALLEY & TOLEDO R. R. CO. v. ELLIS.

N. Y. Supreme Court, First District, Chambers ;

August, 1890.

Headnote

Pleading; compelling reply to allegations of legal proceedings.] The-rule laid down in Schofield v. Demarest, 55 Him, 254, that plaintiff" cannot be compelled to reply to allegations of new matter by way of avoidance in the answer, setting forth proceedings in a legal1 controversy, followed and applied.^[1]

Motion to compel plaintiff to reply to new matter set up in answer.

Defendant’s answer contained two separate defenses... The second defense alleged that in 1887, plaintiff began in-Ohio, an action against several defendants, of whom defendant was one. That the said action was duly submitted to-arbitration, and an award and judgment thereafter entered,,

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dismissing the action upon the merits. Defendant alleged that the matters set forth in that action are the same as those which form the basis for the present action, and that the award and judgment constituted a final adjudication. As S3 ground for this motion defendant alleged that he did not know what answer will be given to the said defense at the trial?

Hugh L. Cole, defendant’s attorney, for the motion.

Charles F. McLean, plaintiffs’ attorney, opposed.

I am of the opinion that, upon the merits,, the defendant Ellis ought to have the relief which he seeks, to obtain through this motion, and as an original question, I should have been of the opinion that it would have been &■ proper exercise of the discretion given to the court, by section 516 of the Code of Civil Procedure, to grant the-application. The precise question involved in this motion, has, however, been recently considered by the general term of this department, and that court has reached a contrary-conclusion.

In the case of Schofield v. Demarest ( 55 Hun, 254 ), es motion was made by defendants to compel the plaintiff to reply to new matter in the defendant’s answer, which motion was denied by the special term, and from the order denying: the motion an appeal was taken to the general term, which affirmed said order. The general term held that the allegations of the answer which it was sought to compel the plaintiffs to reply to were “ new matter by way of avoidance,” as that expression is used in said section 516 of the Code, but it also held that the motion was properly denied by the special term.

Barrett, J., delivering the opinion of the court said :

“ It is not every case of confession and avoidance which calls for the exercise of the discretionary power conferred' by the section in question. Here the justification pleaded covers the entire history of a judicial controversy, which is-a lengthy and detailed statement, partly of facts and partly

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of evidence of facts. It would be oppressive to put on the plaintiff the burden of going minutely over this elaborate recital, and of admitting, denying, ignoring, or explaining every component part of it. It is, besides, quite unnecessary. A great deal of this 6 new matter ’ consists of statements with regard to the defendant’s proceedings in a law suit, the contents of affidavits, and the decisions of a court, all of which can, without inconvenience, be proved by the production of the record. The plaintiff should not be required to compare the papers on file with the averments of the answer, and then say whether such averments are accurate.”

It is my duty to follow this decision, which plainly requires a denial of the defendant’s motion. Motion denied, with $10 costs to abide the event.