83 N.Y.S. 756 | N.Y. App. Div. | 1903
This is an appeal from an order made at Special Term, denying defendant’s motion to compel plaintiff to reply -to the alleged affirmative defenses set up in' his amended answer. The complaint, alleged that the defendant gave its bond to insure the performance-of a contract of one Egenberger with the plaintiff; that Egenberger failed to perform,- and. the- defendant is liable on its bond. The. complaint specifically alleges that the plaintiff has complied with all the conditions of the contract made and entered into by the-defendant herein, upon his part to be kept and performed, and then sets out the contract of guaranty in full. Defendant’s answer, after stating a general denial, contains an allegation that it was provided in said agreement between it and the plaintiff that defendant should be notified in writing of any act on the part of the principal therein named, which would involve loss for which defendant would be responsible; that no such notice was given, and defendant did-thereby become relieved from obligation under the bond.
■ In a separate paragraph the defendant alleges that it was provided in the bond that any suit at law or proceedings in equity must be brought within six months after breach of the contract y that this, action was not brought within said six months, and the plaintiff is bound by the short limitation.
Section 516 of the Code, which permits a reply to be made in certain cases, provides: “ Where an answer contains new matter,, constituting a defence by way of avoidance^ the court may, in it® discretion, on the defendant’s application, direct the plaintiff to. reply to the new matter.” Section 500 of the Code makes provision for-what an answer of the defendant must contain: First, it may contain a general or specific denial of each material allegation in the complaint controverted by the defendant, and, second, a statement of any new matter constituting a defense or counterclaim.
Inasmuch as the provisions of the defendant’s obligation are explicit, it must be held, and there is. no controversy upon this question, that the plaintiff must show performance of the acts he undertook in the contract to perform as a condition precedent to his maintaining the action, and his complaint alleges that he has performed all of the terms and conditions of the- defendant’s obligation. The separate paragraphs of the answer are no more than
The defendant seems to fear that it will be surprised at the trial, and counsel urges in his brief that as to the defense of failure to notify defendant of the breach of the contract, plaintiff may claim to have sent a notice which defendant did not receive, or make claim that the defendant waived notice, and maintains that defendant must prepare itself to meet either or both of these issues. In regard to the defense of lapse of time, defendant urges that plaintiff may deny the same, or may claim that defendant waived the defense, and that the latter must, therefore, prepare for both lines of proof. The learned counsel for the defendant has evidently fallen into error in these statements in his brief, for it has been repeatedly held that an allegation of the performance of a contract will not support proof of defendant’s waiver of performance. (Beecher v. Schuback, 1 App. Div. 359 ; Ryer v. Prudential Insurance Co., 85 id. 7.)
The order appealed from should be affirmed, with costs.
Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
