
    George Toplitz, Respondent, v. William A. Garrigues, Appellant.
    
      Beply to new matter in the answer — the right to require it rests in th& discretion of the court—when required in order to prevent surprise on the trial.
    
    The right to require the plaintiff in an action to reply to new matter set out in the answer, is, under the provision of section 516 of the Code of Civil Procedure, within the discretion of the court, and will not be exercised where the only purpose subserved thereby is to avoid the necessity of taking testimony by commission.
    In an action brought by the plaintiff, as assignee of the receivers of a Pennsylvania corporation, to recover a balance alleged to be due for goods sold and delivered by the receivers, the defendants interposed an answer setting up new matter to the effect that the receivers had assigned the claim to a bank in Pennsylvania and had directed the defendants to make payment to the bank, and that the defendants thereafter made such payment.
    Held, that as it did not appear what defense to the new matter might be set up by the plaintiff, and as the bank and the persons knowing of the transactions between the receivers and the bank were in Pennsylvania, thus rendering it necessary for the defendants to procure, by commission, the evidence required to meet any and every possible defense which the plaintiff might interpose for the purpose of destroying the validity and effect of the alleged assignment, the court, in order to prevent surprise and promote the interests of justice, would direct the plaintiff to serve a reply.
    Appeal by the defendant, William A. Garrigues, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of ¡New York on the 15th day of October, 1901, denying the defendant’s motion to compel the plaintiff to serve a reply to new matter set up in the answer.
    The action was originally brought against William M. Levering and William A. Garrigues, copartners composing the firm of Levering & Garrigues. Levering died during the pendency of the action, and it was continued against Garrigues, the surviving partner.
    
      John Larkin, for the appellant.
    
      Wales F. Severance, for the respondent.
   O’Brien, J.:

The action was for goods sold and delivered by the receivers of a Pennsylvania corporation of the value of $88,157.42, upon which $71,029.67 was paid, and the balance the plaintiff claims by assignment from the receivers.

In addition to other defenses, the defendants set up new matter constituting a defense by way of avoidance, in the 8th, 9th, 10th and 11th paragraphs of the answer which, briefly summarized, aver that the receivers assigned to the Safe Deposit Bank of Potts-ville, Penn., all their right, title and interest in their claim against the defendants under the contract, and thereafter the said receivers ordered the defendants to pay to the bank the balance found upon an account stated to be due, and that subsequently the defendants did pay such sum and were released and discharged from the claim.

The right to direct the plaintiff to reply to new matter is, under the provision of section 516 of the Code of Civil Procedure, within the discretion of the court. Whether the defendants’ application is to be granted, therefore, necessarily depends upon the facts in such case and no hard and fast rule can be formulated applicable to all. Here it was denied, as shown by the memorandum of the judge at Special Term, upon the- ground that the purpose of the motion is solely to avoid the necessity of taking testimony by commission in support of the defenses.”

Were this the only purpose to be served, we would concur in the denial; but we think that the court overlooked the fact that a reply in this case is necessary in order to prevent surprise and promote the interests of justice. The defendants must necessarily prove the new matter without any assistance from the plaintiff or from the reply if ordered; but without a reply how can they be prepared to meet the defense which may be interposed to destroy the force and effect of the new matter if proved. It is certain that if the defendants prove the defense of new matter set forth, that is the end of the plaintiff’s case unless the force and effect of this defense can in some way be met and destroyed by the plaintiff. But how is it to be met % As suggested by the defendants, has the plaintiff to this new matter defenses in law or defense in equity % Will he claim that the assignment to the bank was a forgery or was never delivered; or that it was not absolute, but conditional % It is mere speculation and conjecture what the defenses to the new matter may be; and as the bank and the persons knowing of the transactions between the receivers and the bank are in Pennsylvania, it would be necessary for the defendants to procure upon commission the evidence required to meet any and every possible defense the plaintiff might interpose for the purpose of destroying the validity and effect of the alleged assignment.

We think, therefore, that this is peculiarly a case requiring a reply, just as much as if the new matter pleaded had been a judgment in bar. In Mercantile National Bank v. Corn Exchange Bank (73 Hun, 78 ; 57 N. Y. St. Repr. 134), where the new matter consisted of a judgment, the court, in language which we regard as applicable to the issue here involved, said, speaking of a reply: “ It will not be granted when its only object is to relieve a defendant from the necessity of proving the facts which he sets up as a defense by way of avoidance. But where, as in the third defense, a judgment of this court is pleaded in avoidance, which, so far as the pleadings disclose, seems to have such force and effect as to lead to a judgment in defendant’s favor, it is but just that it should be known how the plaintiff proposes to meet the issue of fact thus tendered; if admitted, how, if at all, it expects to avoid the effect which defendant claims for it; to the end that surprise with possibly an unjust result upon the trial may be avoided.”

We think that the order appealed from should accordingly be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide the event.

Yah Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.  