Brinkerhoff v. Brinkerhoff — 8 Abb. N. Cas. 207

Majority

p. 207

BRINKERHOFF v. BRINKERHOFF.

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

February, 1880.

Headnote

Pleading.—Compelling Reply.

In an action for dower, defendant alleged that the deceased had been divorced. Held, that defendant’s motion to compel a reply should be granted.

Motion to compel reply.

Lucy A. Brinkerhoff brought this action against Seba Brinkerhoff for admeasurement of plaintiff’s dower, alleging in her complaint that she was, in 1855, married to one Richard S. Brinkerhoff, now deceased, who died in May, 1878, leaving plaintiff his widow him surviving ; with the usual allegations as to the property and its possession. The answer denied knowledge or information sufficient to form a belief as to the alleged marriage; admitted the seizin of the deceased; denied plaintiff’s possession of one-third of

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the premises as her dower as widow; admitted the intestate’s death, but denied plaintiff’s widowhood; denied knowledge or information' sufficient to form a belief as to plaintiff’s joining in any conveyance ; and denied plaintiff’s right to the premises, its. wrongful possession and the alleged value.

For a separate defense the answer denied that on Brinkerhoff’s death plaintiff became or was his widow; and averred that the alleged contract of marriage between him and the plaintiff was, in March, 1868, annulled by a decree of the superior court of the State of Connecticut, whereby he was divorced and discharged from all the duties and covenants to her by reason of the marriage, and was declared to be single and unmarried.

For a third defense defendant alleged that he was not the owner of the premises, and only held by virtue of a trust created by Brinkerhoff during his lifetime.

George M. Mackellar, for defendant,

Moved for an order requiring plaintiff to reply to the new matter in the decree of divorce. I. Section 516 of the Code of Civil Procedure provides for the order asked for. The defendant should be apprised of the way in which the plaintiff proposes to avoid or overcome the decree of divorce. In Hubbell v. Fowler (1 Abb. Pr. N. S. 1), Mullin, J., ordered a reply to the defense of the statute of limitations, on the ground that the defendant should be informed as to what he will have to meet on the trial, and mentions a number of ways in which the plaintiff might defeat the statute. In Leslie v. Leslie (11 Abb. Pr. N. S. 314), action for divorce on ground of adultery—defense, denial and counter-charges of adultery—J. F. Daly, J., held that a reply to the counter-charges of adultery was necessary. In Link v. Sprague, not reported, plaintiff sued defendant for services rendered as tutor to the defendant’s child. The defendant answered, alleging that "she was a mar

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ried woman, and contracted as such with the plaintiff. On motion of L. H. Arnold, Esq., Mrs. Sprague’s attorney, a reply was ordered. In Poillon v. Lawrence (43 Super. Ct. [J. & S.] 385), plaintiff, as assignee of two judgment creditors, sued the defendants. Defendants answered, setting up a discharge in bankruptcy of the defendant Charles L. Lawrence. This case was reported because of decision on another point. In the statement of the case on page 387 appears the following : “ Under an order of the court the plaintiff replied to the new matters contained in the answers as to the discharge in bankruptcy of the defendant Charles L. Lawrence.” There are few reported cases on this question, but from those cited above, it appears that replies have been ordered to answers setting up, by way of defense, discharge in bankruptcy, counter-charge of adultery, statute of limitations and coverture. A reply should certainly be ordered to an answer setting up a decree of divorce as a defense. Unless a reply is made there will be no issues raised. If the new matter is to be taken as true the complaint must fall. The plaintiff, if she believes in her claim for dower, should not hesitate to have issues defined, but should, by replying, raise proper issues, and place this cause upon the calendar for trial.

James Henderson, for the plaintiff, opposed.

The motion that the plaintiff reply to the new matter contained in the answer in reference to the alleged decree of divorce in Connecticut is granted, with $10 costs to abide the event.

Order accordingly.