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Lehman v. Cores-Martinez Co.

155 N.Y.S. 218 Court Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ. Decision date 1915-10-25 English

Delivered by SHEARN, J.

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p. 218
LEHMAN v. CORES-MARTINEZ CO.
(Supreme Court, Appellate Term, First Department.
October 25, 1915.)

Headnote

1. Pleading <@=>167;—Reply—Necessity.
In an action on an assigned note, where defendant pleaded as a set-off a note made by plaintiff’s assignor, but sought no recovery against plaintiff, a reply was unnecessary.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 329; Dec. Dig. <@=>167.]
2. Bills and Notes <@=>489—Reply—Unnecessary Reply.
Where a reply to defendant’s counterclaim on a note was unnecessary, the fact that the reply filed did not aver the accommodation character of the note will not preclude evidence thereof.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. <@=>489.]
<^^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Trial Term.
Action by Leo> J. Lehman against the Cores-Martinez Company. From a judgment upon a directed verdict for defendant, and an order denying new trial, plaintiff appeals. Reversed, and new trial ordered.
Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.
Sydney W. Stern, of New York City, for appellant.
Brussell & Beebe, of New York City (E. Walter Beebe, of New York City, of counsel), for respondent.

This is an action to recover $644.22 upon a promissory note made by the defendant to the order of plaintiff’s assignor. Defendant alleged, “for a further defense and set-off to the amended complaint,” a cause of action upon a promissory note of $1,000 made by plaintiff’s assignor to the order of the defendant. Plaintiff replied to this counterclaim, but did not allege any affirmative defense thereto. Defendant’s prayer for judgment was merely “that the amended complaint be dismissed.”

[1,2] Proof that the $1,000 note which the defendant sought to set off against any recovery by the plaintiff was an accommodation note was refused, because it was not pleaded in the reply. As no recovery from the plaintiff was demanded in the answer, and as the $1,000 note was pleaded purely as a set-off, no reply was necessary. American Guild v. Damon, 186 N. Y. 360 , 364, 78 N. E. 1081 . The fact that the plaintiff, in a reply served unnecessarily, failed to allege the accommodation character of the $1,000 note, could not affect the plaintiff’s right to’ introduce evidence which would have been admissible if there had been no reply at all.

Judgment reversed, and new trial ordered, with costs to appellant to> abide the event. All concur.

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