Teets v. Throckmorton — 8 N.Y. St. Rep. 897

Majority

p. 897

HORACE M. TEETS, App’lt, v. JOB THROCKMORTON, Resp’t.

Headnote

Practice—Reply—When will not be stricken out.

Appeal from order denying motion to strike out a reply.

D. M. Porter, for app’lt; R. A. Pryor, for resp’t.

By the conclusion of the answer the defendant demanded a recovery of a sum of money in his favor, and that supported the inference which might very well be drawn that the answer was intended to contain a counterclaim requiring a reply. The plaintiff adopted the safer course, even if such a construction should not be placed upon the answer. It was judicious in this condition of the pleadings to reply, and to put the allegations of the answer in issue from which the defendant claimed this relief. •

Even though the reply might not be necessary it was of no possible injury to the plaintiffs, and there was no ground for striking it out.

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