1900] WHEN REPLY ORDERED,-continued. may have been transacted on the part of the defendant by an agent, or there may be, as in the case before me, a large number of answers which may be insisted on by way of reply to the new matter of the answer, all of which it would be unreasonable to require the defendant to prepare to meet on the trial, although the matter to be replied to may be presumed to be known to him personally;" and he proceeded to enumerate twelve ways in which the running of the statute of limitations may be defeated and said there were others. When all the facts upon which plaintiff relies to defeat the plea of the statute of limitations appear by affirmative allegations, a reply will not be ordered. Avery v. N. Y. C. & H. R. R. Co. 24 St. Rep. 918; 6 Supp. 547, Aff'd without opinion, 117 N. Y. 660. Requiring the plaintiff to reply to a defense of the statute of limitations is a matter entirely within the discretion of the court, depending upon the facts in each case. Perls v. Metropolitan Life Ins. Co. 15 Daly, 517; 29 St. Rep. 409; 8 Supp. 532. A plaintiff may be ordered to reply to a defense to a policy of life insurance alleging that the same was procured by the insured, by making certain statements in a written application, and that in said application the insured made false statements and representations, and that the policy had lapsed by reason of nonpayment of an assessment thereon. Schwan v. Mutual Trust Fund Life Ass'n, 9 Civ. Pro. 82. A reply will not be ordered to a defense of justification and truth in an action for libel, where the defense consists of a detailed statement of a judicial controversy, partly of facts and partly of evidence, much of which the defendant could easily prove by the production of records and a reply in detail would be oppressive and not relieve the defendant from any probable surprise and would in substance compel the plaintiff to reply to the defendant's evidence. Scofield v. Demorest, 55 Hun, 254; 27 St. Rep. 898; 7 Supp. 832. Winchester v. Browne, 25 Abb. N. C. 148; 19 Civ. Pro. 68; 11 Supp. 614. Columbus H. V. & T. R. Co. v. Ellis, 25 Abb. N. C. 150; 11 Supp. 768; 19 Civ. Pro. 66. N. Y., L. E. & W. R. Co. v. Robinson, 25 Abb. N. C. 116; 11 Supp. 890; 12 Supp. 208. In Link v. Sprague, reported only in brief of counsel, 8 Abb. N. C. 208, plaintiff sued defendant for services rendered as tutor to the defendant's child. The defendant answered, alleging that she was a married woman, and contracted as such with the plaintiff. A reply was ordered. WHEN REPLY Ordered,-continued. d. Voluntary service. A reply served voluntarily in a case where one could not properly be required is an irrelevant pleading and will not be entertained for the purpose of determining its sufficiency to withstand a demurrer. Avery v. N. Y. C. & H. R. R. Co. 24 St. Rep. 918; 6 Supp. 547, Aff'd without opinion, 117 N. Y. 660. A plaintiff has no right to reply to a defense other than a counterclaim, unless required to do so by order, and such order can be made only on the application of the defendant. Sterling v. Metropolitan Life Ins. Co. 6 St. Rep. 96. When a reply is unnecessary it cannot be ordered on plaintiff's application and the defendant compelled to receive it. McDonald v. Davis, 1 Law. Bull. 20. An unnecessary reply served without an order requiring it will be stricken out. Dillon v. Sixth Ave. R. Co. 46 Super. 21. Devlin v. Bevins, 22 How. Pr. 290. e. Waiver-Laches. A motion for a reply is too late after the cause has been referred and noticed for trial. Sterling v. Metropolitan Life Ins. Co. 6 St. Rep. 96. Service of a cross-notice of trial by a defendant after the service of a notice by the plaintiff will not necessarily preclude a motion by the defendant to require the plaintiff to serve a reply, although in many cases it might, in connection with other circumstances, be deemed a waiver. Cavanagh v. Oceanic Steam Nav. Co., Limited, 30 St. Rep. 532; 9 Supp. 198. Matter of Trimm. MATTER OF TRIMM [30 Misc. 393; 97 St. Rep. 952; 63 Supp. 952.] (Surrogate's Court, Erie County. February, 1900.) 1. ADOPTION-REVOCATION. Where an order of adoption has been set aside by the surrogate's court, the status of the child is the same as if no proceedings of adoption had ever been had. 2. SAME-JURISDICTION OF Surrogate's Court. Under Laws 1896, c. 272, §§ 65, 67, providing that the surrogate and the county court shall have concurrent jurisdiction over the adoption of children made from orphan asylums or charitable institutions, the surrogate has jurisdiction over the adoption of a child made from the superintendent of the poor. 3. SAME. Under Laws 1896, c. 272, § 67, giving the surrogate and the county court concurrent jurisdiction to make and revoke orders in adoption proceedings, the surrogate's court has no authority to revoke an order of adoption made by the county court, as by making such appointment the jurisdiction of the county court became conclusive. Petition of Elizabeth C. Thomas to set aside an order of the county court authorizing the adoption of Matilda Trimm by John N. Hoefle. Dismissed. Leroy Andrus (Simon Fleischmann, counsel),for petitioner John M. Hull, for respondent. *This case seems to be sui generis. Counsel for the petitioner states that circumstance personal to the parties render it unlikely that an appeal from the determination of the surrogate will be prosecuted. For Note on "Adoption of Children," see 7 Ann. Cas. 33-38. MARCUS, S. This is a proceeding to set aside an order of adoption made herein on the 8th day of February, 1898, by the county judge of Erie county, on the ground that the foster parents are not proper persons to have the care and custody of the child. It appears without controversy that the child was surrendered to the superintendent of the poor of Erie county in December, 1892, by a written instrument, and was thereafter placed in the German Roman Catholic Orphan Asylum until a permanent home could be provided. It further appears that the child remained in that institution from December, 1892, to September, 1893, when the child was taken from that institution, and given by the superintendent of the poor of Erie county to John N. and Barbara C. Hoefle. It is conceded that the child is without property of any kind or nature whatsoever. In 1897 a proceeding was instituted in the Erie county court to set aside the instrument of surrender to the superintendent of the poor, on the ground that the father of the infant was intoxicated at the time of the signing of said instrument. This proceeding resulted in a dismissal of the petition. Thereafter another proceeding was begun in the surrogate's court of Erie county to set aside the order of adoption, and mutual relation created thereby, on the statutory grounds of cruel and inhuman treatment, which resulted in a decree being made by the surrogate's court on January 11, 1898, abrogating the order of adoption. No disposition of the child was made in that decree, but the infant was, as a matter of law, restored to its original status,—the superintendent of the poor becoming again its legal protector,—or, to speak more accurately, the status of such child became the same as if no proceedings had been had for the adoption thereof. Immediately on the making of that decree, a writ of habeas corpus issued out of the supreme court, returnable forthwith, and the child was produced in court, and allowed to remain with its foster parents pending the further disposition of said proceeding. On the 5th of February an order was made by which the petition for the writ of habeas corpus was dismissed, and the custody, care, and control of said infant were ordered to remain in and with the superintendent of the poor of Erie county. It will be observed that this order in no way disturbed the decree of the surrogate's court theretofore inade on the 11th of January, 1898, since by force of the surrogate's decree the superintendent of the poor became entitled to the custody and care of said infant. Subsequent thereto, and on the 8th day of February, 1898, the present order of adoption, upon which these proceedings arise, was made by the county judge of Erie county, which resulted in the county court again giving in adoption to the same parties this infant, upon the consent of the superintendent of the poor and the consent of the foster parents; and this notwithstanding the decree of this court theretofore made, which had in no way been disturbed by appeal or otherwise, and so remains. From the order of adoption made by the county court, above mentioned, an appeal was taken to the appellate division of the supreme court, and the same was in all things confirmed, without opinion. 55 Supp. 1150. Another writ of habeas corpus issued out of the supreme court, which resulted in an order being made by which the petition for the writ was dismissed, and the petitioners sent to the surrogate's court for further relief. Before the final hearing in this proceeding a writ of prohibition was served, restraining me from in any manner proceeding with the same. This writ was set aside, and the matter went on to a conclusion. It should be remembered that no appeal was ever taken from the decree of the surrogate's court, and the force of that judgment remains unimpaired, except in so far as it was practically reversed and set aside by the county court in its order of adoption made in February, 1898. The circuit having been completed, a fresh start is again taken in this court, and it must be admitted that, if the proceedings are not unique, they are at least novel. No question of jurisdiction was raised in the first proceeding in this court, but, since it is now contended that the surrogate's court has no jurisdiction on the admitted facts of the case, the matter of jurisdiction is treated as an original question. The claim of lack of jurisdiction is made by the relator upon this |