85 N.Y.S. 109 | N.Y. Sup. Ct. | 1903
The action is to recover the possession of real property. The answer sets up as separate defenses: That the plaintiff has not legal capacity to sue for the reason that he is a minor; and, further, that before the commencement of this action the plaintiff became seized of the equity of redemption in the premises subject to a certain mortgage which was foreclosed; that Joseph Timble (the name of the 'plaintiff herein) was a defendant in the foreclosure, and that the defendants in this action purchased the property at the foreclosure sale. A motion is made to compel the plaintiff to reply to these answers. Such motion is addressed to the discretion of the court, and it has repeatedly been held should be exercised to prevent surprise and promote the interests of justice. In Watson v. Phyfe, 20 Week. Dig. 372, the action was to recover possession of real property. The answer set forth that the deceased owner, from whom plaintiff, as heir, claimed to have derived title, had executed a will by which he disposed of the property in controversy in such a way as to deprive the plaintiff of any title to it. The court held the case a proper one in which to direct a reply, stating: “ That the intelligent trial of the action required that the defendants should be informed whether the plaintiff denied the execution of the will and codicil or the validity of the proceedings by which probate of them was accorded or expected to avoid their effect in some other manner. That 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 case would require to be otherwise disposed of.” And Mr. Justice Parker, in Mercantile Nat. Bank v. Corn Exch. Bank, 73 Hun, 78, at page 80, says in speaking of a reply:
Motion granted with ten dollars costa.