Majority
p. 910Lewis R. Stegman, Resp’t, v. Henry S. Hollingsworth, Impl'd, App’lt. (Supreme Court, General Term, Second Department, Filed December 14, 1891.)
Headnote
Pleading—Reply.Although it may he doubtful whether the matter set up in the answer is-intended as a defense of payment or as a counterclaim, a reply thereto-does no harm to the defendant and should not he stricken out.
Appeal from order denying motion to strike out a reply.
Fernando Solinger, for app’ít; A. M. é Q. Card, for resp’t.
The plaintiff was sheriff of Kings county. The defendant Hódgkinson was his under sheriff and defendant Hollingsworth was surety of Hodgkinson to the sheriff. The-under sheriff got $3,400 as under sheriff and did not pay it over. This action is brought to recover the amount of the surety. The-answer avers that portions of the money collected were paid out",
p. 911
for taxes and assessments and for other purposes. That the under sheriff had paid out the money or part of it to an iron company with plaintiff’s assent It is perhaps a question whether these defenses are designed to set out payments • or independent causes of action which will be allowed as offsets or counterclaims. The reply does no harm to the defendant It may remain a question of doubt upon the trial as to the fact whether or not any portion of the answer is technically admitted because it is not ■ denied.
' The order refusing to strike out the reply should therefore be -affirmed, with costs and disbursements.
Dykman and Pratt, JJ., concur.