
    Samuel A. Bennett, Appellant, v. James V. Lawrence, Respondent.
    
      Motion to compel a plaintiff to state, in a reply, when an alleged payment of a.counterclaim, set up by the defendant, was made — when such payment should be set up in a supplemental reply.
    
    Where a plaintiff serves a reply alleging payment, on the day on which the answer was served, of a counterclaim set forth in the answer, and after the defendant has demurred to the reply the plaintiff serves an amended reply alleging payment of the counterclaim without specifying the date of such payment, the court may, in its discretion, require the plaintiff to make the reply more definite and certain by specifying the date of payment, so as to enable the question to be presented whether the fact of payment should be set up in the amended or in a supplemental reply.
    Appeal by the plaintiff, Samuel A. Bennett, from an order of the City Court of Yonkers, entered in the office of the clerk of said' .court on the 29th day of January, 1902, directing the plaintiff to make his amended reply more definite and certain.
    
      Frederick W. Mattocks, for the appellant.
    
      Ralph Earl Prime, Jr., for the respondent.
   Goodrich, P. J.:

In an action on a promissory note for $354.69, commenced October 24, 1901, the defendant served an amended answer on January 2, 1902, in which he counterclaimed a judgment of $40.70 for costs in an involuntary bankruptcy proceeding against the defendant, commenced by the plaintiff and by Cole and Schupner and decided in favor of the defendant before the commencement of the present action, and alleged that the plaintiff had not paid the same.

The plaintiff served his reply on January eighth, alleging that on January 2, 1902, Cole paid the defendant the said costs. The defendant demurred and the plaintiff served an amended reply on January’ 18, 1902, which contained an allegation of the payment of the said costs without specifying the date of such payment. A motion was then made by the defendant for an order requiring the plaintiff to make the allegation of the amended reply more definite and certain, on the ground that the date of the payment is essential because no payment made subsequently to the service of the answer is available, and that when the date of payment, that is, January second, is alleged the reply will be demurrable. The court ordered the plaintiff to make the. reply more definite by setting up the date of such payment with reference to the commencement of the action, and the plaintiff appeals.

The rights of the parties to a legal action must be determined as they existed at the time of the commencement of the action. (Wisner v. Ocumpaugh, 71 N. Y. 113.) Where some event has ’.happened subsequently, it should be presented by supplemental pleading. (Styles v. Fuller, 101 N. Y. 622; Code Civ. Proc. § 544.) The date of the payment is essential to show whether the payment was made before or after the commencement of the action, so as to enable the defendant to demur to the answer if it shall appear that the payment was made after the commencement of' the action, for such fact can be set up only by supplemental pleading. In People ex rel. Crane v. Ryder (12 N. Y. 433) the court held that if the time when a fact happened is a material fact to constitute a- cause of action, it should undoubtedly be stated, and that if it is-not,., the court may require the pleading to be made more definite and certain.

Section 546 of the Code of Civil Procedure provides that where allegations in a pleading are so indefinite or uncertain that the precise application thereof is not apparent, the court may require the pleading to be made definite and certain. This is a matter in the discretion of the court, and we are of opinion that such discretion was wisely exercised by the city judge of- Yonkers.

The order should be affirmed.

All concurred, except Hirsohbekg, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.  