Winchester v. Browne — 26 Abb. N. Cas. 387

Majority

p. 387

WINCHESTER v. BROWNE.

N. Y. Supreme Court, Special Term, First District;

February, 1891.

Headnote

Pleading; reply to neve matter.] Under an order directing plaintiff to reply to new matter in an answer, a denial is a sufficient compliance ; but it will only avail at the trial to enable plaintiff to controvert the new matter, and not to prove an avoidance thereof.^[1]

Demurrer to reply.

This case was previously before the court on a motion to make the reply in this case more definite and certain (see Winchester v. Browne, 25 Abb. N. C. 148 ).

A. W. Otis, for plaintiff.

Abbett & Fuller, for defendant.

Where the plaintiff is directed to reply to new matter in his answer, constituting a defense by way of .avoidance, the reply is subject to the same rules as in the case of a counterclaim (Code, § 516). Those rules are that the reply must contain a general or specific denial of each material allegation controverted by the plaintiff, or any knowledge or information thereof sufficient to form a belief, and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counterclaim (Code, § 514). Where, then, the plaintiff, upon the direction of the court, replies to nerv matter in avoid

p. 388

anee, there must be either a general or specific denial of such new matter or of any knowledge or information thereof sufficient to form a belief. If no such denial is. interposed, the new matter is admitted. But if a denial be interposed in any one of the forms so prescribed, the defendant cannot successfully demur to the reply upon the ground that it is insufficient in law upon the face thereof (§ 493). It is sufficient in law because it is in precise accord with the form of denial prescribed by law.

The defendant complains that the- reply does not apprise him of the manner in which the plaintiff intends, upon the trial to meet the plea of the statute of limitations. This is but another way of saying that the plaintiff should have admitted the defendant’s new matter in avoidance, and set forth in his reply, in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to such new matter in avoidance. The answer to this is, that the plaintiff thus relies upon his general or specific denial or upon his denial of knowledge or information sufficient to form a belief. Upon the trial, he will not be permitted to show new matter constituting a defense to the defendant’s new matter in avoidance, for the reason that he has not pleaded it. The issue will be upon the denial of the defendant’s, averments.

Tested by these rules, the reply is sufficient in law upon its face, and the demurrer thereto should therefore be overruled, with costs.