
    Mary Seaton, Respondent, v. Constance C. Garrison, Appellant.
    First Department,
    December 7, 1906.
    ■Pleading — when reply will be ordered to new matter constituting defense.
    The Code of Civil Procedure (§ 516) authorizes the court, in its discretion, to compel a reply to new matter by way of avoidance contained in an answer.
    When, in an action for goods sold and delivered to a woman, the defendant answers that the plaintiff had accepted part payment by her husband arid his confession of judgment for the balance of the value of the same goods prior to the action, the plaintiff should be ordered to reply to the new matter.
    Appeal by the defendant, Constance C. Garrison, 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 17th day of September, 1906, denying the defendant’s motion to compel the plaintiff to reply to the alleged defenses set forth in the amended answer.
    
      Schuyler C. Carlton, for the appellant.
    
      Henry U. Hart, for the respondent.
   Scott, J.:

Plaintiff sues for goods furnished, alleging that they were sold to defendant at her request, and that she agreed to pay for them. In addition to a general denial the defendant interposed two defenses. One alleges that she was, at the time mentioned in the complaint, a married woman, living with her husband, as plaintiff well knew, and that the goods were sold and delivered with and on the faith and credit of defendant’s husband. Thp second separate defense respecting the foregoing allegation alleges that the plaintiff brought suit against defendant’s husband for the same hill of goods, and accepted from him at dates prior to the commencement of this action the sum of $1,000 in part payment for said goods, and a confession of judgment for the price or value of the same goods sued for in this'action. The Code of Civil Procedure (§516) authorizes the court, in its discretion, ‘ to compel a reply to new matter ^contained in an answer and therein set up as a defense by way of avoidance^ and this discretion is usually exercised where the new matter is of such a character as. to indicate-that if true it Will constitute a defense to the action, the purpose being-to simplify the issues and prevent surprise at the trial. We are of opinión that the" second separate defense, wherein the defendant in effect pleaded an election of remedies by the plaintiff, is of a character which called upon the court to exercise its discretion and to requite a reply to be served. If the plaintiff relies upon any facts by which she expects to avoid the apparent sufficiency of this defense she shoidd be required to plead them. . ■

The order appealed from will, therefore, he reversed, without, costs in this court, and the motion granted to the extent of requiring the plaintiff to reply to the second separate defense contained in the. answer. ■ j

Patterson, Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, without costs, and motion granted to the extent of requiring plaintiff to reply to second separate de’fense. Order filed.  