
    (142 App. Div. 465.)
    SHAFF et al. v. UNITED SURETY CO. OF BALTIMORE, MD.
    (Supreme Court, Appellate Division, First Department.
    January 20, 1911.)
    Pleading (§ 166)—Reply—Necessity—New Mattes in Answer.
    Where a complaint in an action on a policy of burglary insurance pleaded full performance of its conditions and terms, and the answer pleaded ..a breach of warranty and an attempt to defraud the defendant by exaggerating the claim, the plaintiffs should be required to reply to the new matter pleaded.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 321%; Dec. Dig. § 166.]
    Appeal from Special Term, New York County.
    Action by Louis M. Shaff and another against the United Surety Company of Baltimore, Md. From an order of Special Term denying a motion to compel the plaintiffs to reply to the new matter contained in the defendant’s answer, the defendant appeals.
    Order reversed.
    Argued before INGRAHAM, P. J., and LAUGHLIN, CLARICE, SCOTT, and MILLER, JJ.
    Joseph L. Prager, for appellant.
    Jacob Manheim, for respondents.
    
      
      For otner cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   MILLER, J.

This is an action on a policy of burglary insurance.

The policy is not made a part of the complaint, but the plaintiffs plead full performance of its conditions, provisions, and terms. The defenses to which a reply is asked are five- in number. Three alleged breaches of what both sides seem to agree are conditions precedent, performance of which the plaintiffs must prove under their plea of performance. The separate defenses, therefore, are no more than denials.

The first defense pleaded is a breách of warranty, and the fifth an attempt to defraud the defendant by exaggerating the claim. While it is' within the discretion of the court to compel a reply to new matter in an answer, constituting a defense by way of avoidance, that discretion will usually be exercised when the new matter,- if true, will constitute a defense. Seaton v. Garrison, 116 App. Div. 301, 101 N. Y. Supp. 526.

The order should be reversed, with $10 costs and disbursements, and the motion granted, requiring the plaintiffs to reply to the new matter contained in the first and fifth defenses. All concur.  