New York, Lake Erie & Western Railroad v. Robinson — 11 N.Y. St. Rep. 890

Majority

p. 890

THE NEW YORK, LAKE ERIE AND WESTERN RAILOAD COMPANY, Resp’t, v. CHARLES ROBINSON, Appl’t.

Headnote

Practice—Reply—When ordered.

Appeal from order denying motion to compel a reply to certain defenses set up in the answer herein.

Edward B. Burnett, for app’lt; Henry Schmitt, for resp’t.

—There seems to be no good reason shown upon the papers presented on this record for requiring a reply to the answer herein, unless the rule is to be adopted that the court will require a reply to any new matter set up by way of defense.

The allegations as to the proceedings of the court in Illinois can be easily

p. 891

■proven, if true, by an exemplified copy of the record in that court, and no reply should be required.

The defense of the statute of limitations is one which the defendant must establish for himself, and the plaintiffs cannot be called upon to lend their assistance to him, or to aid him in the performance of that task.

The case of Watson v. Phyfe, which seems to be relied upon as an authority for the granting of the motion in this action, presented features entirely differ■ent from those existing in the case at bar.

In that case, upon various grounds essentially different in their nature, the averments of the answer might be attacked, and the court held that the defendant should be informed of these grounds by a reply.

In the case at bar, the effect of the alleged adjudications in Illinois must depend upon the record of the proceedings in that state and the laws applicable thereto; and of this fact the defendant is perfectly aware, and cannot, therefore, be surprised by the introduction of some new and unexpected reply to his defense.

The order appealed from should be affirmed, with ten dollars costs and disbursements. _