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Wester v. Mutual Reserve Fund Life Ass'n

57 N.Y.S. 832 Court N.Y. City Ct. Decision date 1899-04-27 English

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p. 832
WESTER v. MUTUAL RESERVE FUND LIFE ASS’N.
(City Court of New York, General Term.
April 27, 1899.)

Headnote

Pleading—New Matter in Avoidance—Reply.
Where defendant pleads new matter in avoidance, a reply should be ordered.
Appeal from special term.
Action by Max Wester, as executor, against the Mutual Reserve Fund Life Association. From an order of the special term, defendant appeals.
Reversed.
Argued before McCARTHY, CCXNLAY, and O’DWYER, JJ.
& Burnham, Jr., for appellant.
Alfred & Charles Decker, for respondent.

This is an appeal by the defendant from an order of the special term of this court entered on March 15, 1899, denying defendant’s motion to compel reply to the alleged new matter constituting defense by way of avoidance, contained in defendant’s answer herein, embraced in paragraphs 2, 3, 4, 5, 8, and 14 of such answer. The answer is lengthy and somewhat involved; but the sections referred to pleaded new matter by way of avoidance, and the authorities are too numerous to require separate mention that in cases of this character a reply should be ordered.

Order appealed from reversed, and motion to compel reply granted..