126 N.Y.S. 723 | N.Y. App. Div. | 1910
Plaintiff sued to recover a loss under a fire insurance policy. Defendant answered, setting up an appraisal under the .terms of the policy, by 'which plaintiff’s loss was fixed at an amount very much- less than that claimed by plaintiff. To this defense plaintiff replied attacking the appraisal as fraudulent and collusive. Defendant refused to accept the reply as being unauthorized by the Code of Civil Procedure. On motion of plaintiff an order was entered at Special Term directing defendant to receive the reply, and from that order this- appeal is taken. -
The Code of Civil Procedure does not in terms authorize á voluntary reply by the plaintiff to new matter set up in an answer, unless the matter so set,up is in its nature a counterclaim. (Code Civ. Proc. §§ 514, 515.) It does provide that where the answer sets up new matter not by way of counterclaim but by way of avoidance, the court may, in its discretion,-.on the defendant’s application, direct the service, of a reply to the new matter set up in the answer. (Code Civ. Proc. § 516.) At first blush there seems to be an anomaly in this situation, for plaintiff may. be forced to do something for which there is no provision for voluntary action on his part. This anomaly is only -seeming, for the Code has provided for the plaintiff fully under such circumstances. By. section 522 it provides as follows: “ But an allegation of new matter in the answer, to which a reply is not required, or of new. matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.” It has been held that the meaning of this provision is that when a defense by avoidance is set up in the answer, the facts of such defense are deemed to be denied, and furthermore that the plaintiff may meet such defense at the. trial by any new matter by way of avoidance as fully as if he had pleaded such new matter. (Mandeville v. Reynolds, 68 N. Y. 528; Arthur v. Homestead Fire Insurance Co., 78 id. 462; Keeler v. Keeler, 102 id. 30, 36.) Therefore when the Code failed, to provide for a voluntary reply from a plaintiff to a defense by way of avoidance,
The reply served in this- case was not necessary for the protection of plaintiff’s rights in the way of meeting, at the trial the defense of avoidance set up in defendant’s answer. It not only did not injure the defendant, but apparently benefited it; Yet, as such a pleading has long been held to be irregular and unauthorized, the defendant should not be forced to accept it.
The order should be reversed, ■ with" ten dollars costs and disbursements, and the motion denied, with costs.
Hirschberg, P. J., Woodward, Jenks and. Thomas, 'JJ., concurred.' .
. Order reversed, with ten dollars costs and disbursements, -and' motion denied, with ten dollars costs.