Devlin v. Bevins — 22 How. Pr. 290

Majority

p. 290

SUPREME COURT.

Charles Devlin agt. James I. Bevins.

Headnote

Where new matter set up in the answer does not constitute a counter-claim, no reply will be allowed.

The word “ defence” in § 154 of the Code is to be understood as meaning counterclaim.

New York Special Term, December, 1861.

Motion by defendant to strike out the plaintiff’s reply.

John H. Trapp, for plaintiff.

Henry H. Morange, for defendant.

The motion, to strike out the reply must be granted, no counter-claim being set up by the answer.

The word “ defence” in section 154, is to be understood as meaning counter-claim.

Whether that meaning be given to section 154 or not, a reply cannot be permitted where no counter-claim is interposed by the answer, if full effect be given to section 168 of the Code.

The new matter set up in the answer, where it does not constitute a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. ( Williams agt. Upton, 8 How. Pr. R., 205 ; Richtmeyer agt. Haskins, 9 How. Pr. R. 481; Myatt agt. Saratoga Mu. Ins. Co., 9 How. Pr. R., 488 ; Quin agt. Chambers, 1 Duer, 673 .)

Costs of motion, $10, to the defendant, at the termination of the action.