
    SUPERME COURT—SPECIAL TERM.
    September, 1851.
    Before Edmonds, Justice.
    Comstock v. Hallock.
    Where an answer denies a material allegation of the complaint, and as a separate defense sets up new matter in avoidance of the cause of action, and the plaintiff omits to reply thereto, the defendant is not entitled to judgment for want of a reply; hut where the denial is merely a part of the new matter, and for the purposes thereof, there the defendant may move for judgment for want of a reply.
   Edmonds, J.:

This is a motion for judgment against the plaintiff because the plaintiff has not replied to the new matter set up in the answer, and is opposed on the ground that the answer also contains a denial of facts alleged by the complaint, and thus tenders an issue independent of the new matter.

When an answer sets up as a distinct and substantive defense a denial of the cause of action, and also, as may be done, sets up new matter in avoidance or bar, it will not be proper to give judgment for the defendant, on motion, because of the want of a reply to the new matter, for the reason that there still remains an issue of fact which is still to be disposed of, and which may yet terminate the suit in favor of the plaintiff.

But when the distinct cause of defense is substantially new matter, and, in pleading it, it becomes necessary to deny some of the allegations in the complaint, and there is no other denial in the pleading than such denial, forming as it does a part of the defense of new matter, if the plaintiff omits all reply, the case comes within the 154th section of the Code, and judgment may he given for want of an answer.

Such is the case now before me.

The complaint is for a trespass to lands. The defendant, in his answer, does not deny, hut admits, the facts which would constitute the trespass, and he sets up in defense, first, title in himself, and, second, license from the plaintiff. In pleading title he denies the seizin of the plaintiff, and, in pleading license, he denies that he trespassed ol1 wrongfully entered.

The answers are substantially new matter, and issue is not taken upon the plaintiff’s cause of action. It is therefore precisely the case provided for in the 154th section of the Code; the answer contains new matter constituting a defense, and the plaintiff has failed to reply, and there is no issue tendered in the case, nor can there be except upon such matter, and therefore the defendant is entitled to his judgment dismissing the complaint.

Motion granted with costs.  