SUCCESSIVE EXAMINATIONS IN SUPPLEMENTARY PROCEEDINGS,-continued.

In the Grocers' Bank of the City of New York v. Bayaud, 21 Hun, 203 Brady, J., indicated that the application for a second order should be on notice. Barrett, J., dissented from this view, both expressions being obiter.

e. References.

For note on "Limitation of Supplementary Proceedings," see 1 Ann. Cas. 24.

For note on "Procedure where Property is Disclosed in Supplementary Proceedings," see 1 Ann. Cas. 152.

MASTERS v. DE ZAVALA et al.

[48 App. Div. 269; 96 St. Rep. 791; 62 Supp. 791.]

(Supreme Court, Appellate Division, First Department. February 23, 1900.)

PLEADING ANSWER-NEW MATTER-REPLY.

Plaintiff, as assignee of a judgment collected by defendants, brought an action for the amount thereof. Defendants' answer alleged that they collected the judgment under an agreement fixing their fee at one half

NOTE. WHEN REPLY ORDERED.

a. The statute.

b. In general-Discretion.

c. Particular Cases.

d. Voluntary service.

e. Waiver-Laches.

a. The statuto.

Where an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter.

§ 516 Code of Civil Procedure.

b. In general-Discretion.

A reply will not be ordered as to evidentiary facts alleged in an answer. Steinway v. Steinway & Sons, 68 Hun, 430; 52 St. Rep. 660; 22 Supp 945; 29 Abb. N. C. 457.

Masters v. De Zavala.

the amount recovered, and they obtained an order requiring plaintiff to serve a reply to the new matter contained in their answer. Held, error, where the new matter alleged was within the knowledge of defendants, and could be proved at trial.

Appeal from special term, New York county.

Action by Joseph W. Masters against Henry De Zavala and another. From an order directing him to serve a reply, plaintiff appeals. Reversed.

Argued before Van Brunt, P. J., and BARRETT, McLaughlin, Patterson, and O'BRIEN, JJ.

Jacob Fromme, for appellant.

J. Brownson, for respondents.

MCLAUGHLIN, J. This is an appeal from an order directing the plaintiff to reply to new matter set up in the answer. The complaint alleges that the firm of Stewart & Bros. brought an action in the United States circuit court to recover excessive duties paid on importations; that the action was prosecuted to and resulted in a judgment in their favor in the sum of $5,186.

WHEN REPLY ORDERED,-continued.

The defendant is not entitled to a reply simply for the purpose of escaping the proof a defense by evidence.

Perls v. Metropolitan Life Ins. Co. 15 Daly, 517; 29 St. Rep. 409; 8 Supp.

532.

The discretion committed to courts by § 516 of the Code of Civil Procedure as to ordering a reply is a legal one, which should be so exercised as to prevent surprise and promote the interests of justice.

Mercantile Nat. Bank of N. Y. v. Corn Exchange Bank, 73 Hun, 78; 57 St. Rep. 134; 25 Supp. 1068.

In Cauchois v. Proctor, 79 Hun, 388; 61 St. Rep. 508; 29 Supp. 770, Dykman, J., said of § 516 of the Code of Civil Procedure, "That section commits a legal discretion to the courts to direct the plaintiff to reply to new matter set up in an answer by way of avoidance, as contradistinguished from a counterclaim, and the discretion should be exercised to promote the interest of justice. In this case the defendant has set up matter in avoidance, after confessing the original agreement, and it is his right to know whether the

73, which sum was collected by the defendants; that the same belonged to the plaintiff by assignment, but that the defendants have refused to pay it, notwithstanding a demand has been made therefor. The answer alleges that the suit in the United States circuit court in which the judgment was recovered was brought under an agreement between the plaintiffs in that action, Stewart & Bros., and one Stedwell, their attorney, by the terms of which Stedwell was to prosecute the action at his own expense, and, if a recovery was had, then he was to have, as and for his compensation, 50 per cent thereof; that Stedwell, during his lifetime, and, after his decease, his executrix, performed all of the terms of the agreement on his part to be performed, prosecuted the action to judgment, and collected, through the defendant De Zavala, who at the time the judgment was recovered was the attorney of record, the amount of the judgment; that under

WHEN REPLY ORDERED,-continued.

plaintiff intends to controvert the facts so alleged. Such a course will avoid a surprise upon the trial and narrow the issues to be tried."

The avoidance of surprise to the defendant is not the only ground for requiring a reply.

Cavanagh v. Oceanic Steam Nav. Co., Limited, 30 St. Rep. 532; 9 Supp.

198.

In the case just cited, Partlett, J., said: “It is true that the question whether the motion to compel a reply should be granted or denied usually depends upon the further question whether a reply is necessary in order to prevent surprise, but no hard and fast rule should be laid that would make this the only test upon such a motion."

A reply is properly ordered when an intelligent trial of the action requires that the defendants be informed whether the plaintiff denied the facts alleged as an affirmative defense or expected to avoid their effect in some other manner, and when without a reply the defendants would be left to conjecture upon what possible ground the plaintiff might expect to succeed, and might very well be subjected to surprise entitling them to avoid a determination of the action which the facts of the casewould require to be otherwise disposed of.

Watson v. Phyfe, 20 Week. Dig. 372.

The plaintiff may be required to reply although the action is brought in his representative capacity as administrator.

McGin v. Torrens, 4 Law. Bull. 29.

the terms of the agreement they were entitled to retain, as and for the compensation and expenses of Stedwell and his representatives, one half of such recovery, and the other half belonged to Stewart & Bros., and that they have at all times since the judgment was collected been ready and willing to pay the same to Stewart & Bros. or to their assignee; and that the plaintiff in this action had knowledge, at and prior to the time the claim is alleged to have been assigned to him, of all of the foregoing facts, and of the Stedwell agreement. Upon the complaint and answer and an affidavit, the defendants moved for an order requiring the plaintiff to serve a reply to the new matter contained in defendants' answer. The motion was granted, and the plaintiff has appealed.

We think the order should be reversed. No reason is suggested, or facts stated in the papers used upon the motion, which justified the court in making the order. If the defendants are entitled to hold one half of the judgment collected, as they allege

WHEN REPLY ORDERED,-continued.

c. Particular Cases.

Where a judgment "is pleaded in avoidance, which, so far as the pleadings disclose, seems to have such force and effect as to lead to a judgment in defendant's favor, it is but just that it should be known how the plaintiff proposes to meet the issue of fact thus tendered; if admitted, how, if at all, it expects to avoid the effect which defendant claims for it, to the end that surprise, with possibly an unjust result upon the trial, may be avoided."

Mercantile Nat. Bank of N. Y. v. Corn Exchange Bank, 73 Hun, 78; 57 St. Rep. 134; 25 Supp. 1068.

The fact that the judgment pleaded has been appealed from is immaterial so far as a motion for a reply is concerned.

Id.

Where the answer tenders an issue as to ratification alleged to have been effected by the plaintiff, the defendant is entitled to a reply in order to be advised whether the facts are admitted or denied and, if admitted, how the effect thereof is to be avoided by the plaintiff.

Steinway v. Steinway & Sons, 68 Hun, 430; 52 St. Rep. 660; 22 Supp. 945; 29 Abb. N. C. 457.

In Williams v. Kilpatrick, 21 Abb. N. C. 61, the defendant was sued as a general partner and set up as a defense that he was a limited partner unVII. N. Y. A. C.

19

they are, they can establish that fact upon the trial. A reply to new matter will not be directed, when the only purpose sought in having such reply served is to relieve the defendant from the necessity of proving the facts which he sets up in his answer as a defense by way of avoidance. Mercantile Nat. Bank v. Corn Excl. Bank (Sup.)73 Hun, 78; 57 St. Rep. 134; 25 Supp. 1068. The facts here alleged as a partial defense are, if true, manifestly within the knowledge of the defendants; and it is difficult to see what good purpose could be accomplished by requiring the plaintiff, in advance of the trial, to state under oath his knowledge on the subject.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 All concur.

costs.

WHEN REPLY ORDERED,--continued.

der a statutory limited partnership which complied in all respects with the statute. A reply was ordered setting forth what noncompliance with the statute the plaintiff relied on.

S. P., Hartford Nat. Bank v. Beinecke, 15 App. Div. 474; 78 St. Rep. 486; 44 Supp. 486; 26 Civ. Pro. 226; 4 Ann. Cas. 219.

In Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. 207, the action was for dower and the defendant's answer alleged that the plaintiff had been divorced. A reply was ordered.

A plaintiff may be required to reply to a plea of the statute of limitations, for the purpose of giving the defendant an opportunity to test, by a demurrer, the sufficiency of the facts relied on to take the case out of the statute. Cavanagh v. Oceanic Steam Nav. Co., Limited, 30 St. Rep. 532; 9 Supp.

198.

A reply will be ordered to compel a plaintiff to disclose how it is intended to defeat the operation of the statute of limitations which is set up as a defense.

Hubbell v. Fowler, 1 Abb. Pr. N. S. 1.

In the case last cited, Mullen, J., said, "In many, if not in most, cases the defendant knows with reasonable certainty the answer which will be given to his defense; and there can be no reason for a motion to enable him to ascertain a fact of which he is already cognizant.

"There are, however, very many cases in which the defendant may not know the answer which the plaintiff may make to the new matter in his defense because it may be matter affecting the plaintiff personally, or the business