
    Stegman v. Hollingsworth et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Pleading—Reply to New Matter not Constituting Counter-Claim.
    A reply to an answer which sets up new matter not constituting a counter-claim, though irregular, will not be stricken out, where it appears that defendants will not be embarrassed by such reply.
    Appeal from special term,- Kings county.
    Action by Lewis E. Stegman against Henry S. Hollingsworth and Francis S. Hodgekinson, on an under-sheriff’s official bond. Defendant Hollingsworth answered the complaint, setting up new matter, to which plaintiff replied, denying “each and every allegation of said defendant’s answer which sets up or alleges a counter-claim to-the claim of plaintiff. ” Defendant Hollingsworth appeals from an order denying a motion made by him to strike out the reply. Affirmed. For appeal from order overruling demurrer, see 14 ÍL Y. Supp. 465.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Fernando Solinger, for appellant. A. M. & G. Card, for respondent.
   Barnard, P. J.

The plaintiff was sheriff of Kings county. The defendant Hodgekinson was his under-sheriff, and defendant Hollingsworth was surety of Hodgekinson to the sheriff. The under-sheriff got $3,400 as under-sheriff and did not pay it over. This action is brought to recover the amount of the surety. The answer avers that portions of the money collected was paid out for taxes and assessments and for other purposes; that the under-sheriff had paid out the money or part of it to an iron company, with plaintiff’s assent. It is perhaps a question whether these defenses are designed to set out payments or independent causes of action which will be allowed as offsets or counter-claim. The reply does no harm to the defendant. It may remain a question of doubt upon the trial as to the fact whether or not any portion of the answer is technically admitted because it is not denied. The order refusing to strike out the reply should therefore be affirmed, with costs and disbursements. All concur.  