Masters v. De Zavala — 48 A.D. 269

Majority

p. 269

Joseph W. Masters, Appellant, v. Henry De Zavala and William T. Schley, Respondents.

Headnote

Reply to an answer —not required in orden• to relieve the defendant from proving the' facts.

In an action in which the plaintiff claimed to he entitled, hy an assignment from Stewart & Bros., the plaintiffs in another suit, to the sum collected on a judgment recovered therein, the answer stated that the suit in which the judgment was recovered was brought under an agreement by which the. attorney for the plaintiffs therein, one Stedwell, was to receive fifty per cent of the recovery as his compensation; that Stedwell, during his lifetime, and after Stedwell’s decease, his executrix, by the defendant De Zavala, who, at the time the judgment was recovered was the attorney of record, prosecuted the action to judgment, and that the defendants were entitled to retain one-half of the recovery as the compensation of Stedwell and his representatives, and that the other half belonged to Stewart & Bros., which the defendants were ready and willing to -pay, and that the- plaintiff had knowledge at or prior to the assignment to him of all the foregoing facts and of the Stedwell agreement.

Meld, that the defendants were not'entitled to an order requiring the plaintiff to serve a reply to the new matter contained in the answer.

A reply to new matter-will not be directed where the purpose sought is to relieve the defendant from the necessity of proving the facts which he sets up in his answer as a defense by way of avoidance.

Appeal by the plaintiff, Joseph W. Masters, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of January, 1900, directing' him to serve a reply to the new matter in the paragraphs of the defendants’ answer numbered 4th, 5th, 6th, ’Tt-h and 8th.

Jacob Fromme, for the apppellant.

J. Brownson Ker, for the respondents.

This is an appeal from an order directing the plaintiff to reply to new matter set up in the answer.

The complaint alleges that the firm of Stewart & Bros, brought an action in the United States Circuit Court to recover excessive duties paid on importations; that the action was prosecuted to and

p. 270

resulted in a judgment in their favor in the sum of $5,186.73, which sum was collected, by the defendant's-; that the same belonged to the plaintiff by assignment, but that the defendants have refused to pay it, notwithstanding a demand has been made therefor.

The answer alleges that the suit in the United States Circuit ■ Court, in which the judgment was recovered, was brought under an agreement between the plaintiffs in - that action, Stewart & Bros., and one Stedwell, their attorney, by the terms of which Stedwell was to prosecute the action at his own expense, and if a recovery was had, then he was to have, as and for his compensation, fifty per cent thereof; that Stedwell, during his lifetime, and after his decease, his executrix, performed all of the terms of the agreement on his part to be performed, prosecuted the action to judgment and collected, through the defendant De Zavala — who, at the time the judgment was recovered, was the attorney of record — the amount of the judgment; that, under the terms of the agreement, they were entitled to retain, as and for the compensation and expenses of Stedwell and his representatives, one-half of such recovery, and the other half belonged to Stewart & Bros., and that they have, at all times since the- judgment was collected, been ready and willing to pay the same to Stewart & Bros., or to their assignee; and that the plaintiff in this action, had knowledge, at and prior to the time the claim is alleged to have been assigned to him, of all of the foregoing facts and of the Stedwell agreement.

Upon the complaint and answer and an affidavit the defendants moved for an order requiring the plaintiff to serve a reply to the new matter contained in defendants’ answer. The motion was granted and the plaintiff has appealed.

We think the order should be reversed. BTo reason is suggested or facts stated in the papers used upon the motion which justified tlie court in making the order. If the defendants are entitled to hold one-half of the judgment collected, as they allege they are, they can establish that fact tipon the trial. A reply to new matter will not be directed when the only purpose sought in having such reply served is to relieve the defendant from the necessity, of proving the facts which he sets up in his answer as a defense by way of avoidance. (Mercantile National Bank v. Corn Exchange Bank, 57 N. Y. St. Repr. 134 .)

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The facts here alleged as a partial defense are,.if true, manifestly within the knowledge of the defendants, -arid it is difficult to see what good purpose could be accomplished by requiring the plaintiff, in advance of the trial, to state, under oath, his knowledge on the subject.

' It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.