
    John Lamberty, Resp’t, v. Milton J. Roberts, App’lt.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 16, 1890.)
    
    1. Pleading—Reply—Appeal.
    When the original pleadings are not inserted in the case, the appellate court will assume that the counterclaim in hath the original and amended answers was the same on the question whether a reply was necessary to the amended answer.
    2. Same.
    Where’ the counterclaim is the same in hath answers, and a reply has been ¡ erved to the original one, it is unnecessary to serve another reply to the amended answer.
    Motion for reargument
    
      Eugene Fray er, for motion; J. C. McGuire, opposed.
    
      
       See ante, 148.
    
   Per Curiam.

This motion proceeds upon an analysis of the dates of the several pleadings contained in the judgment-roll, and of the prefatory statement which precedes it It is contended that the absence of a reply to the paper styled an answer to the amended complaint, but called an amended answer in the verification, is thus established. This answer was verified on the 26th of January, 1887, and the reply was served on the 7th of the following. March. We are asked to infer that this answer, thus verified, was-retained, unserved, in the attorney’s possession, until after the service of the reply,- and that it was not in fact served until the 25th of March, 1887. The conclusion is then drawn that, as the prefatory history of the case states that no further or other pleading was served after March 25th, there could have been no reply to the counterclaim contained in this answer. We do not think that the case should be thus microscopically analyzed for the purpose of disturbing a perfectly just judgment upon a pure technicality.

We should rather seek the means of upholding a judgment rendered after a fair trial upon the merits, and if needful we might even permit any proper amendment to be made nunc pro tune.

There can be no doubt, however, that this counterclaim was, in substance, replied to. The appellant does not contend that the counterclaims in the original and amended answers differed, so far as the subject-matter was concerned. He merely suggests that “ there was a distinct allegation inserted in the counterclaim by the amended pleadings which the pleader deemed important to express rather than to leave to inference, as he had done in the original pleadings.”

The respondent, on the other hand, says that the original answer was amended “ but the counterclaim was not.’’ The motion for judgment upon the counterclaim was denied upon the trial, upon the distinct ground “ that the reply served March 7, 1887, was a sufficient reply to said counterclaim.” The judge, in order to make that ruling advisedly, must have had the two answers before him. He thus necessarily held that the counterclaims were substantially alike.

If the appellant thought otherwise and desired a review on that head, he should have had the original pleading inserted in the case. Assuming then, as we have a right to assume, that the counterclaim in each pleading was the same, we think the court was right upon the trial in denying the motion, and that it was was unnecessary to serve another reply to a mere repetition of matter already replied to.

It was so held under the old Code, Leslie v. Leslie, 11 Abb., N. S., 317; Howard v. The M. S. R. R. Co., 5 How., 206, and there is nothing in § 543 of- the Code of Civil Procedure militating against this rule.

The motion for a reargument should be denied, with ten dollars costs.

Van Brunt, P. J., Bartlett and Barrett, JJ., concur.  