
    Lillian Cauchois, App’lt, v. William Proctor, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 18, 1894.)
    
    Pleadings—Reply.
    It is discretionary with the court to require plaintiff to reply to new matter in the answer.
    Appeal from an order requiring plaintiff to reply to certain defenses, containing new matter.
    
      Roger M. Sherman, for app’lt; Strong, Harmon & Mathewson (Theron G. Strong, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an order, made at the special term, requiring the plaintiff to serve a reply to the second and third defenses set up in the answer of the defendant The action is to procure an accounting in relation to a partnership between the plaintiff and the defendant. The complaint alleges a partnership agreement between the parties, by which the plaintiff becomes entitled to one-half of the profits o£ the business, and one-half of the capital. The answer admits the execution of the agreement by the parties, but alleges that nothing was done under the same. For a second defense the answer alleges that the defendant and the husband of the plaintiff entered into an agreement of copartnership for the purpose of carrying on a certain business, which is described; that the husband thereafter became insolvent, and applied to the defendant to released him from the partnership, and substitute his wife in his place, and an agreement to that effect was prepared and executed, but that no partnership was formed between the plaintiff and defendant, and nothing was done under that agreement, and the agreement was cancelled and destroyed; that thereupon an agreement was made between the defendant and the husband of the plaintiff, whereby the copartnership between them was dissolved, and the husband sold all his right and interest in the assets of the firm to the defendant, and agreed to withdraw from the firm; and that thereafter the husband ceased to have any interest in the business. For a third defense the answer alleges that the plaintiff and her husband finally settled and adjusted all their matters of difference with the defendant, and, for a valuable consideration, executed and delivered to him a release, under seal, of all claims and demands whatsoever. Thereupon, the defendant made a motion to require the plaintiff to reply to the second and third defenses separately, and the motion was granted. From that order granting the motion the plaintiff hasi appealed to this court.

The motion was made and granted under § 516 of the Code of Civil Procedure, the first clause of which is as follows: “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” 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 discretian 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 plaintiff intends to controvert the facts so alleged. Such a course will avoid a suprise upon the trial, and narrow the issues to be tried. We think the discretion of the court was wisely exercised in' making the order, and the cases of Mercantile Nat. Bank v. Corn Exch. Bank, 73 Hun, 78; 57 St. Rep. 134, and Steinway v. Steinway, 68 Hun, 430; 52 St. Rep. 660, support our conclusion.

The order should be affirmed, with $10 costs and disbursements.  